Health, Social Care and Sport Committee
The following changes to Committee membership occurred during the Committee's scrutiny:
On 7 November 2023, Ivan McKee MSP replaced Stephanie Callaghan MSP.
On 14 November 2023, Ruth Maguire MSP replaced Evelyn Tweed MSP.
As the Member in charge of the Bill, Gillian Mackay did not participate in the Committee’s scrutiny of the Bill by virtue of Rule 9.13A.2(b) of the Standing Orders of the Scottish Parliament. Ross Greer attended in her place, as a Committee substitute, by virtue of Rule 12.2A.2. By virtue of Rule 12.2.3(a), Gillian Mackay attended meetings on 27 February 2024 and 19 March 2024 in her capacity as the Member in charge of the Bill and also gave evidence to the Committee on the Bill on the latter date.
Consideration by other committees
The Committee notes the conclusions reached by the Delegated Powers and Law Reform Committee and the Finance and Public Administration Committee in relation to the Bill.
Human rights considerations
Proportionality
The Committee is of the view that a precautionary approach is needed when developing and implementing legislation that has implications for conflicting human rights, whereby any restrictions on human rights are kept to the minimum necessary to meet defined policy aims. In this context and based on the evidence it has received during its scrutiny at Stage 1, the Committee has concluded that the restrictions the Bill imposes on those human rights as set out in Articles 8, 9, 10 and 11 of the ECHR are proportionate to its aims, namely strengthening the ability of women seeking an abortion to exercise their own rights under Article 8.
The Committee acknowledges the concerns raised by opponents of the bill about the threat to the perceived legitimacy and expression of their views on abortion in public spaces.
The Committee recognises the right to protest and private thought as a cornerstone of a free democracy. However, given the clear scope of the current bill, the committee is assured that any extension of “safe access zones” or similar prohibition of vigils or protests would require additional and separate primary legislation and the scrutiny and proportionality assessments that accompany it. The Committee nonetheless asks the Scottish Parliament to be aware of these implications in future scrutiny.
The Committee considers it important that the legislation is subject to ongoing review to ensure restrictions continue to be proportionate to the legitimate aims of the Bill as circumstances change over time. To enable this, the Committee calls for provision to be made to ensure the Bill's implementation undergoes regular post-legislative review to ensure its continuing effectiveness, including the provision of regular updates on its implementation to the Scottish Parliament. It would also be helpful to clarify which people or bodies are responsible for collecting ongoing evidence about the impact of safe access zones on both people accessing abortion services and those engaged in protests and vigils.
Protected premises
The Committee agrees with the definition of "protected premises" as set out in the Bill.
At the same time, the Committee notes that any future extension of this definition is likely to have an impact on the human rights as set out in the ECHR of those protesting or undertaking vigils. To ensure the impact on human rights are assessed and remain proportionate to the aims of the bill, any future changes to this definition should be subject to a further enhanced level of parliamentary scrutiny to that currently provided by the Bill.
Safe Access Zones
Establishment of safe access zones
The Committee recognises the particular nature of abortion service provision in Scotland with protected premises situated within larger hospital campuses as opposed to stand-alone units and with a variety of entry points. It therefore acknowledges the importance of ensuring an approach to establishing safe access zones that is appropriate to Scotland's healthcare landscape. It further recognises the desirability of taking a uniform approach to the establishment of safe access zones across Scotland to provide clarity and certainty as to the parameters of those zones, for those accessing services and for those engaged in behaviour prohibited by the Bill.
At the same time, the Committee questions why the default radius of safe access zones has been set at 200m when evidence suggests a radius of 150m would be sufficient for all but one protected premises currently providing abortion services in Scotland.
The Committee therefore recommends an alternative approach of setting a standard radius of 150m for safe access zones in Scotland and then using the provisions set out in section 7 of the Bill to extend this radius to address the specific circumstances of the Queen Elizabeth University Hospital site.
The Committee heard a range of evidence on the subject of signage being displayed outside protected premises and welcomes the commitment in the Financial Memorandum to undertake further consultation on signage as the Bill progresses through Parliament.
Extension, reduction and cessation of safe access zones
The Committee recommends that the Member in charge of the Bill and the Scottish Government consider whether there may be justification for setting minimum and maximum requirements for extension and reduction of safe access zones in the legislation to ensure:
a proportionate approach in terms of the Bill's impact on human rights, and
the potential risk of these powers being misused by Scottish Ministers is eliminated.
The Committee recommends that Scottish Ministers undertake a human rights proportionality assessment before making decisions about reducing or increasing the size of safe access zones and that such a requirement should be included on the face of the Bill.
The Committee recommends that the Bill should be amended to stipulate that processes to either extend or reduce the radius of safe access zones should be subject to consultation with service providers and other relevant stakeholders.
To ensure appropriate parliamentary oversight, the Committee further recommends that decisions to extend or reduce the size of safe access zones should be made by way of delegated powers and that the relevant instruments should be subject to the affirmative procedure.
Offences relating to safe access zones
Management and enforcement of offences
Based on the available evidence, the Committee is satisfied that the Bill is competent in relation to the management and enforcement of offences detailed in sections 4 and 5.
The Committee recommends further consultation with Police Scotland on proposals to deliver specialist training regarding the enforcement of the offences created by this Bill, and to commit to put in place the necessary funds to develop and deliver that training. The Committee further requests that the financial memorandum (FM) be updated to reflect that commitment.
Defining influence - conclusion
Based on the evidence, the Committee agrees with the approach taken in the Bill of focusing on the intention behind behaviours as the means of determining whether an offence has been committed rather than providing a list of specific behaviours. The Committee is satisfied that the Bill provides sufficient clarity that the behaviour covered by the Bill is any which is intentionally trying to influence people who are accessing abortion services or being reckless as to whether that is the effect.
The Committee recognises that police officers in Scotland take an oath in which they pledge to ensure that, in their actions and in undertaking policing operations, they respect the human rights of all people; that they are used to determining context, behaviour and intent as part of their normal operational management of public order, and that there are suitable processes in place to allow these decisions to be contested, both in court and via appeal.
However, the Committee is also aware that there are areas of implementation that will be subject to ongoing review. The Committee recommends embedding a post-legislative review process into the legislation to ensure it remains human-rights compliant and to assess the extent to which protections in the Bill may need to be adjusted as a result. The Committee suggests this should include a record of any offences committed during the review period and an assessment of the extent to which each safe access zone has fulfilled its purpose.
The Committee has had extensive discussion on the issue of silent prayer, and remains unclear how the intent of those silently praying can be interpreted. It could be difficult for the police to reach a clear decision whether the law has been broken by people standing silently praying, in the absence of any other behaviour.
There is a difference of views within the Committee. Some Members consider that there should be an explicit exemption from the provisions in the Bill for silent prayer, in order to avoid any criminalisation of private thoughts. However, other Members feel that such an exemption would fundamentally undermine the purpose of the Bill, and that people silently praying can still be intimidating to those seeking to access abortion services. This is an issue we expect we will need to return to at Stage 2 if the Bill proceeds to that Stage.
Exceptions to offences
The Committee acknowledges trade union concerns that the current exception for trade union picketing is narrowly defined and could result in other activities associated with industrial disputes that would seek to influence staff delivering abortion services not to provide those services, being captured as an offence. The Committee therefore calls on the Member in charge of the Bill and the Scottish Government to consider how and to what extent this exception might be expanded to include other types of trade union activity without undermining the underlying purpose of the Bill.
Penalties for offences
Based on the evidence it has received, the Committee is satisfied that the penalties in the Bill are appropriate and proportionate to achieving the aims of the Bill.
However, the Committee highlights evidence it has received that penalties could be expanded to include the issuing of warnings or physical removal from a safe access zone as a further means of policing first offences as well as the issuing of an exclusion order prohibiting those found to have committed repeat offences from entering a safe access zone for a defined period of time. It calls on the Member in charge of the Bill and the Scottish Government to consider whether amendments might be required to the Bill to enable the use of such alternative approaches or to what extent they might be covered in operational guidance supporting the Bill's implementation.
The Committee also recommends that the legislation is subject to ongoing review to ensure penalties remain appropriate to achieving the deterrent aims of the Bill. It calls on the Scottish Government to keep the Parliament informed of any significant developments in case law that could have implications in this area.
Recommendation on the general principles of the Bill
The Committee has taken evidence over the course of its scrutiny which has illustrated the importance of ensuring that women can access healthcare services without harassment and undue influence. The Committee has also heard concerns about the potential impact of the Bill upon the human rights of those who engage in anti-abortion activity. Notwithstanding the Committee's position in relation to silent prayer and while acknowledging that the Bill has a differential impact on competing human rights, the Committee has concluded that its provisions are proportionate to achieving its stated aims.
Throughout its scrutiny, the Committee has carefully considered the views of a broad cross-section of stakeholders, both for and against the Bill. In the process of reaching a view on the general principles, it has explored a range of scenarios that may arise if the legislation were to be enacted. It has concluded from this exercise that it will be necessary and important for individual cases to be assessed according to their particular circumstances and that operational management of enforcement of the legislation will have a critical role to play in ensuring its appropriate implementation.
The Committee is firmly of the view that, to ensure that it remains suitably proportionate, balanced and effective in the light of changing circumstances, the legislation must be subject to a robust process of post-legislative review. It therefore calls on the Member in charge of the Bill and the Scottish Government to make provision for this, including appropriate opportunities for ongoing parliamentary scrutiny, by way of Stage 2 amendments to the Bill.
The Health, Social Care and Sport Committee draws its conclusions and recommendations on the Bill to the attention of the Parliament and recommends that the general principles of the Bill be agreed to.
Gillian Mackay MSP introduced the Abortion Services (Safe Access Zones) (Scotland) Bill (“the Bill”) in the Scottish Parliament on 5 October 2023.
At its meeting on 24 October, the Committee agreed its initial approach to its scrutiny of the Bill at Stage 1, subject to being designated as the lead committee. The Parliament agreed to designate the Health, Social Care and Sport Committee as lead committee for scrutiny of the Bill at Stage 1 on 25 October 2023.
Under the Parliament's Standing Orders Rule 9.6.3(a), it is for the lead committee to report to the Parliament on the general principles of the Bill. In doing so, it must take account of views submitted to it by any other committee. The lead committee is also required to report on the financial memorandum and policy memorandum, which accompany the Bill.
The Scottish Government set out its support for the Bill in a memorandum to the Committee on 19 December 2023. The Bill, and associated documentation, has been prepared by the Scottish Government on behalf of Gillian Mackay MSP.
The Committee issued two calls for evidence which were open for submissions between 27 October 2023 and 20 December 2023:
A short survey to provide general views and comments on the Bill overall.
A structured call for evidence to provide detailed comments on individual provisions in the Bill.
The Committee received 2,178 responses to the short survey. Individual responses to this survey were not published. Instead, a summary of these responses was published on the Scottish Parliament website. The Committee received 3,680 responses to the structured call for evidence, published on Citizen Space. The Scottish Parliament Information Centre (SPICe) published a summary of written submissions on the Scottish Parliament website.
The Committee took formal oral evidence on the Bill during February and March 2024 (see further Annex A)–
On 27 February 2024, the Committee held a private session with the supporting Bill team from the Scottish Government, a public session on comparable research worldwide, and a formal panel exploring the impact of the Bill on those accessing abortion services.
On 5 March 2024, the Committee took evidence from two panels to scrutinise the impact of the Bill on those providing abortion services, and then from those who will be responsible for enforcing buffer zones and management of zones.
On 12 March 2024, the Committee took evidence from two panels to scrutinise the impact of the Bill on those who are against the introduction of safe access zones, and to explore human rights considerations.
0n 19 March 2024, the Committee concluded its oral evidence programme by taking evidence from the Minister for Public Health and Women's Health and supporting officials from the Scottish Government, followed by the Member in charge of the Bill, Gillian Mackay MSP, and supporting officials from the Scottish Government.
On 24 October 2023, as part of consideration of its approach to the scrutiny of the Bill at Stage 1, the Committee agreed to commission research on comparable legislation, legislative scrutiny and implementation of safe access zone legislation worldwide. The research, by Emily Ottley from the University of Winchester, International Comparison of Abortion Safe Access Zones Legislation: Literature Review, has been published on the Scottish Parliament website, alongside an executive summary. The Committee also took oral evidence from Emily Ottley on the findings of her research on 27 February 2024.
The Committee held two informal meetings with people with lived experience. The first session, with individuals who reported having encountered anti-abortion groups while accessing abortion services, took place on 26 February 2024 preceding a related formal evidence session on 27 February 2024. The notes from this session have been published on the Scottish Parliament website. The second session, with individuals who have participated in anti-abortion activity outside premises providing abortion services, took place on 5 March 2024 preceding a related formal evidence session on 12 March 2024. The notes from this session have been published on the Scottish Parliament website.
To better understand individual experiences, the Committee also viewed video footage and testimonies, in private, received from:
Back Off Scotland, supporting individuals accessing abortion services
The Society for the Protection of Unborn Children, supporting individuals who undertake vigils, and those who feel they have benefited from talking to people at vigils, while accessing abortion services
The Committee thanks everyone who provided evidence as part of its Stage 1 consideration of the general principles of this Bill.
The wording used in the Committee's calls for evidence mirrored the language of the documents accompanying the Abortion Services (Safe Access Zones) Scotland Bill, using terms such as “people who access or provide services”, “anti-abortion”, and “protester” as umbrella terms, intended to describe actions rather than motivations.
During both written and oral evidence, many individuals and organisations who expressed their opposition to the Bill stated that there was a distinction between protest and peaceful prayer vigils. Isabel Vaughan-Spruce noted:
"I hold a vigil, or we have volunteers who might gather in groups of two or three, but we are not there protesting"1.
Margaret Akers, from the Society for the Protection of Unborn Children went on to note that in her view:
[...] protests are not happening—vigils are what happen outside all the providers. The regular events that you might see from 40 Days for Life or other groups are vigils. The bill is supposed to be getting at a current public order problem, and the events that are happening are vigils, not protests [...] pro-life vigils in Scotland are a peaceful presence; people are primarily there to pray, not to protest1.
Those opposing the Bill who gave oral evidence to the Committee indicated they were in agreement that they would not support protests that involve shouting and abuse, graphic images of aborted foetuses and literature containing misinformation.
The Bill, as introduced, does not make a distinction between protest and peaceful vigil. Instead, section 4(1) of the Bill, sets out the following behaviours that would constitute an offence where a person engages in them with the intention to (or being reckless as to whether the effect is to):
influence the decision of another person to access, provide or facilitate the provision of abortion services
prevent or impede another person from accessing, providing or facilitating the provision of abortion services
cause harassment, alarm or distress to another person in relation to that person's decision to access, provide or facilitate the provision of abortion services.
In recognition of the complexities associated with terminology related to protest and vigil, this report refers to behaviours as set out in the Bill, and where that is not possible, uses the language identified by stakeholders themselves when expressing their own views and describing activities.
The Delegated Powers and Law Reform (DPLR) Committee is required to report on the delegated powers within a Bill. The Committee considers each of the delegated powers in a Bill and whether they are framed appropriately (for example, the power being conferred is not too broad) and that the Parliament is afforded sufficient scrutiny of the exercise of this power.
The DPLR Committee considered the Bill at Stage 1 at its meeting on 12 December 2023. The Committee reported that it did not need to draw the attention of the Parliament to the delegated powers contained in:
Section 10: Power to modify meaning of “protected premises”
Section 11: Ministerial guidance
Section 12: Ancillary provision
Section 15: Commencement
The Finance and Public Administration (FPA) Committee issued a call for views on the estimated financial implications of the Bill as set out in its accompanying financial memorandum (FM). This was open between 27 October 2023 and 20 December 2023 and received three submissions, published on Citizen Space. The FPA Committee noted it would not be publishing a report or undertaking any further scrutiny of the FM. The Health, Social Care and Sport Committee considered these submissions as part of its scrutiny.
During oral evidence, when asked whether the anticipated financial impact of the Bill is proportionate to its purpose, no particular concerns were raised by COSLA or the Scottish Solicitors Bar Association. Police Scotland noted that there were operational implications, such as training for officers which are discussed in more detail later in this report, but that the "impact will be minimal.1"
The Committee notes the conclusions reached by the Delegated Powers and Law Reform Committee and the Finance and Public Administration Committee in relation to the Bill.
In the policy memorandum, the Scottish Government states that the aims of the Bill are to:
protect access to abortion services across Scotland;
ensure that people can access abortion services without fear of, and free from, intimidation, harassment or public judgement;
ensure that at the point of access users are protected from attempts to influence or persuade them in relation to their decision to access services;
take a preventative approach so all abortion services are covered, including those that have not experienced protests;
ensure that providers or facilitators of the service are protected from attempts to influence their decision to provide or facilitate abortion related services at their place of work or where those services are delivered;
prevent providers or facilitators from being reluctant to provide or facilitate services for fear of such protests occurring1.
The Policy Memorandum sets out the rationale for introducing legislation:
Whilst legalised abortion has always provoked strong and often polarised debate, in recent years, there has been an increase in activity occurring directly outside premises at which abortion services are provided. In the last five years, documented anti-abortion activity has occurred outside Queen Elizabeth University Hospital (QEUH), Aberdeen Maternity Hospital, Sandyford Clinic, Chalmers Clinic, Royal Infirmary of Edinburgh and Glasgow Royal Infirmary. This activity has included silent vigils, displays of images of foetuses, signs with language such as “murderer”, and displays of religious iconography. The scale and frequency of this activity varies from small groups to large vigils, and varies in intensity and frequency throughout the year1.
Further detail on the background to the Bill can be found in the Bill briefing produced by the Scottish Parliament Information Centre (SPICe).
Gillian Mackay MSP set out her reasons for introducing the Bill when she gave evidence to the Committee on 19 March 2024. While recognising the emotive nature of abortion as an issue, she argued that the Bill was not about abortion but rather was about:
[...] the right and ability of women to access the healthcare they need, free from fear that they will be met with judgement and shaming, with placards and signs, with groups of people telling them they are wrong1.
Gillian Mackay went on to make the case that, in her view, "Securing that freedom should matter to everyone, irrespective of their views on abortion1".
The Member acknowledged that many people who participate in protest or vigils believe they are helping women but went on to argue that some women find their actions and behaviours "distressing and alarming1". She further suggested that, for some women, this could increase feelings of anxiety or of being judged about their healthcare choices and that this could also result in treatment being delayed, which could in turn lead to an increased risk of complications. This view was echoed by healthcare providers who gave evidence to the Committee.
The Scottish Government's memorandum to the Committee set out its commitment to work closely with Gillian Mackay to deliver the Member's Bill and to support its passage through the legislative process.
Jenni Minto MSP, the Minister for Public Health and Women's Health, further set out the Scottish Government's support for the Bill when she gave evidence to the Committee, arguing that "no other medical procedure [...] attracts the kind of activity abortion services do" and "no other form of protest [...] targets such a personal choice1". The Minister further made the case that the purpose of the Bill is to safeguard access to healthcare.
Prior to formal agreement of the Scottish Government's support of the Bill with Gillian Mackay, the Scottish Government commissioned research on the impact of protests and vigils on behalf of the Ministerial-led working group on safe access zones. Alongside its memorandum to the Committee, the Scottish Government submitted an interim year 1 report for this research and noted in the memorandum that the research is due to conclude in 2024.
The policy memorandum sets out the Scottish Government's consideration of existing criminal law and other alternatives to this legislation1. The table below sets out the various offences that are already in place under existing law:
| Existing law | Existing offences |
|---|---|
| The Antisocial Behaviour etc. (Scotland) Act 2004 | This Act allows the police to designate an area where there has been significant, persistent and serious antisocial behaviour. In the designated area, the police have the power (via dispersal orders) to disperse groups or individuals within groups where their presence or behaviour is causing, or is likely to cause, alarm or distress to any member of the public. The policy memorandum states that these dispersal orders can only be issued if other approaches have proved unsuccessful, and will expire after three months. |
| Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 | This section stipulates that it is an offence for a person to behave in a threatening or abusive way, which would be likely to cause a reasonable person to suffer fear or alarm. This action must be with the intention of, or be reckless in relation to causing fear or alarm. |
| The Protection from Harassment Act 1997 | This Act provides that "Every individual has a right to be free from harassment and, accordingly, a person must not pursue a course of conduct which amounts to harassment of another and— is intended to amount to harassment of that person; or occurs in circumstances where it would appear to a reasonable person that it would amount to harassment of that person". |
| Section 20 of the Police and Fire Reform (Scotland) Act 2012 | This section provides that it is the "duty of a constable to maintain order". |
| The Public Order Act 1986 | This Act provides that a person commits an offence if they use threatening, abusive or insulting words or behaviour", or distributes or displays any "writing, sign or other visible representation which is threatening, abusive or insulting". This can be within a private or public place. |
| Breach of the Peace, under Scots Law | To commit an offence of breach of the peace a person must conduct behaviour which is genuinely alarming and disturbing, in its context, to any reasonable person. |
In 2021, the Scottish Government formed a Ministerial Working Group on Safe Access Zones to consider actions to address "the issue of protests/vigils that take place outside of abortion clinics or other facilities providing healthcare". This group explored three non-legislative options that might meet the policy aim of protecting access to abortion services:
Option 1: relying on local authority byelaws
Option 2: relying on existing police powers
Option 3: relying on mediation and enhanced guidance
The group ultimately considered these options insufficient to meet the intended policy aim, concluding that "even in combination, these laws cannot ensure preventative, consistent protection for individuals accessing abortion services".
The policy memorandum sets out that, in the Scottish Government's view, the following commonalities across these options make them unsuitable as an alternative to legislation:
They do not provide for a consistent, national approach that is vital in ensuring the same level of protection is delivered throughout Scotland.
Each requires evidence of harm before they can be used; this is inconsistent with the need to prevent harm and not only react once it has happened.
Each requires the making of a police report; as noted in evidence gathered for the Bill many patients are unwilling to speak about their experiences. Requiring this therefore has potential both to be ineffective, and to subject women to further distress by recounting deeply personal and sometimes traumatising experiences.
Certain anti-abortion activities such as handing out leaflets do not breach existing law despite evidence, as set out above, that they can have harmful impacts and represent an invasion of patient privacy.
The existence of these powers has not prevented groups from engaging in behaviour aimed at abortion service users, thus strongly indicating they are an ineffective deterrent1.
The majority of respondents to the Committee's call for views who opposed the Bill argued that the existing criminal law provides adequate protection for those using abortion services. There was a common view that these laws could be used to tackle genuinely problematic behaviour. Conversely, many respondents who supported the Bill argued that existing criminal offences were not effective at tackling anti-abortion protests outside clinics.
During personal testimony to the Committee, Lily Roberts, who reported having experienced harassment outside of abortion services, gave an account of an experience outside the Sandyford Clinic in Glasgow. Lily set out how, in her view, existing law was ineffective at tackling the complexity of behaviours demonstrated outside of abortion services:
I went to observe two protesters who regularly frequented the clinic. Those two individuals had megaphones and were chanting hymns and preaching very loudly into the clinic. The police were called and they came. I saw how the police officers dealt with the situation and spoke to them about the existing legislation. Their words were that there was nothing they could do [...] The police took the megaphones off the protesters, because they were infringing on the peace—or however it would be phrased. But, once the megaphones were taken off them, they started screaming into the clinic3.
Dr Catriona McMillan set out to the Committee the Law Society of Scotland's legal assessment as to why the current legal landscape may not be adequate:
The first thing that we point to is the evidence that has been given by various stakeholder groups, healthcare practitioners and folk seeking termination, on how effective the current legislative landscape has been in preventing intimidation and harassment. Secondly, we point to the evidence for a real need for the bill, which is important for the proportionality assessment. In England, although the upcoming legislation has not yet been tested in court, the legislative landscape enabled safe access zones but, for one reason or another, needed to go one step further because the existing provisions were not enough4.
The Scotland Act 1998 sets out various restrictions on the legislative competence of the Scottish Parliament. One of the requirements is that legislation must be compatible with the European Convention on Human Rights (ECHR).
The provisions of the Bill engage the following Articles of the European Convention on Human Rights:
Article 8 (the right to respect for family and private life)
Article 9 (freedom of thought, conscience and religion)
Article 10 (freedom of expression)
Article 11 (freedom of assembly and association).
The policy memorandum states that "protecting the Article 8 rights of service users and providers will require some interference with the Article 9, 10 and 11 rights of those who wish to express their opposition to abortion outside clinics.1"
It should be noted that, according to the terms of the ECHR, none of the human rights engaged by the Bill are absolute and all of these rights can be restricted on various grounds. While these grounds will vary according to which Articles of the ECHR are engaged, it is permissible for each right to be restricted to protect the rights of other people.
The European Court of Human Rights has laid down a methodology for judging whether restrictions are justified. To meet the requirements of the ECHR, restrictions must:
be prescribed in (or in accordance with) law - the law should be accessible. It should also be clear enough that it is possible for a citizen to foresee,with the help of appropriate advice if necessary, how it would apply to them.
pursue a legitimate aim - the legitimate aim must be one of the justifications detailed in paragraph 2 of the right, such as the protection of health or the rights of others.
be necessary in a democratic society - the European Court of Human Rights has developed several tests relating to this. However, broadly, restrictions must be proportionate to the legitimate aim pursued.
By way of context, the Abortion (Safe Access Zones) (Northern Ireland) Bill was passed by the Northern Ireland Assembly on 24 March 2022. The criminal offence it contains is worded in a similar way to the Bill before the Scottish Parliament. Before receiving Royal Assent, the Bill was referred to the Supreme Court of the United Kingdom (UKSC) by the Attorney General for Northern Ireland. The Attorney General asked the UKSC to consider whether clause 5(2)(a) of the Bill was a proportionate interference with the rights of those who wish to express their opposition to abortion services in Northern Ireland. On 7 December 2022, the UKSC acknowledged that clause 5(2)(a) of the Abortion Services (Safe Access Zones) Bill would restrict the exercise of protestors’ rights, but it concluded that the offence was proportionate, and therefore compatible with the European Convention on Human Rights. The decision also specifically recognised that staff delivering abortion services had a right to be able to attend work without harassment, intimidation or abuse under Article 8.
Eilidh Dickson from the Scottish Human Rights Commission (SHRC) stated in her evidence that, in the context of its scrutiny of the Abortion Services (Safe Access Zones) (Scotland) Bill, "it is entirely appropriate for justification to be pursued by the Parliament". She went on to state:
In general, qualified rights such as those under articles 9, 10 and 11 can be restricted by a general measure of the Parliament [...] In this case, that would include the introduction of criminal sanctions and the introduction of safe access zones [...] In addition, it must be asked whether the restriction pursues a legitimate aim. The Supreme Court’s decision on the Northern Ireland legislation is really clear in that respect, and it helpfully articulates with some clarity that the purpose of protecting women who are seeking termination of pregnancy is a legitimate aim2.
Addressing the extent to which the restriction of rights may be deemed necessary in a democratic society, Eilidh Dickson highlighted the Committee's parliamentary scrutiny as a "key part of the proportionality assessment" to determine whether the competing interests of those who hold protests or vigils outside abortion services, and those accessing legally provided abortion services, have been appropriately balanced. Ms Dickson concluded:
ultimately, we are talking about a parliamentary decision that involves weighing up all the conflicting factors in relation to the bill as a whole2.
Eilidh Dickson suggested that this proportionality assessment would reach beyond the legislative process, noting that the:
Supreme Court clarified [in the Northern Ireland legislation] that the police will have to do a proportionality assessment on a case-by-case basis, that the courts will have to do a court proportionality assessment if a case reaches that point and that a certain level of fine might be disproportionate.
She concluded:
Therefore, we are not able to say absolutely that every single case will be proportionate, but the legislation as a whole seems, on balance, to at least consider all those options, and it is perfectly within the Parliament’s discretion to do that2.
The following sections in this report summarise the evidence the Committee has gathered to gain a fuller understanding of the competing interests in relation to Articles 8, 9, 10 and 11 of the ECHR that are engaged by this Bill.
| Article 8: Right to respect for private and family life |
|---|
| 1. Everyone has the right to respect for his private and family life, his home and his correspondence. |
| 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. |
Article 8 of the ECHR requires the state to ensure that an individual is protected against interference in their private life. In the context of the Bill, this would include a decision to access abortion services. It would also encompass a person's right to pursue employment and would include employment in the provision of abortion services.
Most individuals and organisations who support the Bill, and who engaged with the Committee during its scrutiny, expressed a view that people should be able to access abortion services without harassment or intimidation. Many indicated that the current impact of anti-abortion activity on people accessing abortion services was a primary concern for them.
Alice Murray and Lily Roberts spoke to the Committee of their personal experiences accessing abortion services. In setting out her experience, Alice told the Committee:
When I went to the Chalmers clinic, there were around five to seven protesters. I made the choice to go to the clinic alone, so they were the only people that I saw—apart from the healthcare workers inside, who were absolutely brilliant. The protesters were standing on the other side of the street from me. In many ways, it is weird to say that I feel lucky. There is no lucky experience, but some of the testimonies that you will hear over the course of your evidence might seem a little more shocking than mine.
However, she went on to speak about the longer term effect this experience had on her:
[...] the long-term impacts of facing the protesters have been significant. It has definitely impacted the way that I could think about and process my experience [...] It is easy for people to think that an abortion will never be a pleasant experience, that it will always be traumatising and that that is wrapped up in the experience. That is absolutely untrue. I know for a fact that, if the protesters had not been there, the experience would have been the equivalent of getting a tooth out for me. It was not a big deal, but the protesters made it a politicised and stressful experience1.
Reflecting Alice's experience, some of those who provided written evidence to the Committee also argued that the presence of anti-abortion activists was intimidating in itself, regardless of the actions undertaken by those individuals.
Lily spoke to the Committee of her experience accessing abortion services at the Queen Elizabeth University Hospital in Glasgow and the impact this had on her. Lily explained that she and her partner encountered 15-20 people expressing opposition to abortion:
the protest was completely unavoidable—you simply could not avoid it. It was very intimidating. People were holding up placards [...] I thought that the protests were a very American occurrence. Coming to Scotland and suddenly being confronted with the reality—which, I am sure, happens to a lot of other people accessing services, too—played on my mind.
Lily went on to tell the Committee about the continued impact the protestors had on her throughout her visit to the hospital:
I was in hospital for quite a while—about seven hours. When I went in at 7 am, the protesters were all there. Rather than being present in the moment, I spent the entire time thinking about how I would get out. There was an element of feeling trapped and overwhelmed by their presence1.
During an informal session, the Committee heard from women who had accessed abortion services and who supported the Bill. All participants at this session argued that protests can have a significant, long-term effect beyond the immediate effect on how they felt on the day. Two participants spoke about how their experiences of protestors had caused further anxiety and re-traumatisation when attending maternity services for subsequent pregnancies. One participant spoke about how her experience of protestors had caused her to delay accessing services for a subsequent abortion and to scope out alternative access routes in advance of related appointments to avoid having to go through the same experience again.
Similarly, Dr Chris Provan from the Royal College of General Practitioners Scotland (RCGP) raised concerns that protests outside premises could result in patients delaying their access to services or, in some cases, not accessing those services at all:
The British Society of Abortion Care Providers has pointed out that some women might be tempted to obtain drugs on the internet or to go to non-regulated services. We do not know what is in those medications and that is not regulated, so doing that would be unsafe for them3.
A number of organisations supporting the Bill highlighted what they perceived to be a potential negative impact of anti-abortion activity on people from marginalised and vulnerable groups. In this context, the Health and Social Care Alliance Scotland (the ALLIANCE) highlighted that they felt women and girls from marginalised groups, including disabled people, those experiencing socio-economic disadvantages, and people from ethnic minority groups, would be disproportionately affected4. The Young Women’s Movement indicated that young women face particular barriers to accessing sexual health services5. COSLA6 and the Scottish Women’s Rights Centre7 expressed concern that survivors of sexual violence and abuse may be disproportionately affected by anti-abortion activity whilst attending clinics in a vulnerable state. In connection with these concerns about the perceived negative impact on vulnerable groups, Lucy Grieve highlighted some of the testimonies collected by Back Off Scotland:
We have testimonies from refugees who are at extremely vulnerable points in their lives. Members can imagine the impact that there would be on somebody if they were going through some of the worst times of their life and they had to pass through that knowing that people were there to target them, as it is clear what the signs with pictures on them are there to do1.
Many organisations supporting the Bill expressed concerns that anti-abortion demonstrations would equally have a negative impact on healthcare professionals who conduct or support the provision of abortion procedures.
Based at Chalmers sexual health service in Edinburgh, Professor Sharon Cameron characterised the protests outside the clinic as creating "a chill in staff" and told the Committee that staff have expressed concerns about their safety as a result of these activities. Professor Cameron went on to provide further detail of the nature of the activities experienced outside the clinic:
The protests that we have had have tended to occur on Monday mornings, with a group of perhaps four, on average. About 2018, however, the group increased in number to up to eight individuals, who stand or lean against a wall on the public street, separated from the patients’ entrance of Chalmers by a fairly busy road. They are men and women who are in general a little bit older—probably over the age of 50. The protests do not occur every week. They take the form of a display of images of fetuses, placards and anti-abortion messages. The protesters sometimes walk up and down the street and outside the patient entrance into the centre, handing out anti-abortion literature to passers-by, those accessing the clinics and the high school students in the adjacent school. That activity tends to increase during Lent. In 2020, we had a nocturnal illumination of images and anti-abortion messages with a fetus being projected on to the building3.
Several witnesses spoke about the impact of these activities on staff. Dr Rebecca Mason from the Young Women's Movement reported that staff felt "incredibly attacked every morning" as they went to work1. Rachael Clarke of the British Pregnancy Advisory Service (BPAS), an abortion provider in England, described how these experiences had affected her staff, indicating that they had been subject to some "pretty nasty altercations". She went on to expand further on the impact on staff:
It has also resulted in some of our staff expressing fear when they are walking to their cars at night and have to walk past protesters. I have reports of staff being chased down the street in the dark [...] The impact on staff grinds them down. They become quite used and inured to it because they have been there for so long and it happens day in, day out. However, when you begin to dig down into the matter with staff, you find that the impact on them is severe and that it really affects how they feel about their ability to do their job1.
Testimony was referenced from a junior doctor, who described having accessed an abortion whilst at university, and her subsequent experiences of encountering anti-abortion demonstrators on her way to and from work. The junior doctor’s testimony was also shared in Back Off Scotland’s written submission to the Committee’s call for views:
I had an abortion while at university for medical school, it was the right decision for me, but obviously a difficult process to go through. I now come to work and the car park I park in most mornings and leave most afternoons has these protesters standing there. I have to see their signs and hear them talking most days. I find this extremely distressing both as a person who has had an abortion, just trying to go to and from their place of work and not be made to feel wrong or guilty in some way, and secondly as a care provider who is aware of the many women going in and out of the maternity unit every day who will have to suffer this. Seeing these protests every day affects my ability to provide good care to patients because the message that I am somehow wrong/a murderer is constantly enforced on me most days I enter the building. I have begun parking in a different car park despite it being harder to get a space and a longer walk from the hospital, but I still know they are there, and it feels awful12.
Colin Poolman from the Royal College of Nursing Scotland (RCN) also suggested that protestors were not always outside services at the same times or in the same numbers, and argued: "the unpredictability causes anxiety for people attending—both patients and our members, who are just attending work3".
The Committee took oral evidence from representatives from NHS Lothian, NHS Grampian and NHS Tayside, all of which made reference to additional burdens on staff resulting from anti-abortion activities outside abortion services. Lesley Sharkey from NHS Tayside spoke about the effects of these activities on other staff, such as administrators, porters and security staff, as well as clinical staff3. Dr Sarah Wallage emphasised the wider impact of these activities, arguing "it affects everybody who works in the building, which, for us, includes staff in cardiology and physiotherapy services—a huge number of people could be affected3." Professor Cameron from NHS Lothian outlined concerns she had heard from staff about patients being "put off" attending services, as well as the negative impact these activities have had on logistical arrangements and staff workloads:
There is not just the anxiety that arises from having to make preparations when we know that there are going to be protesters but, in some circumstances, we have had to use staff to divert patients from the patient entrance to the staff entrance and then take them through the building, which requires the use of security cards. That can take up time and energy3.
Lucy Grieve pointed to testimonies received by Back Off Scotland as providing evidence of how "a whole cross-section of society" had been affected by demonstrations outside of abortion services and not just those accessing or providing abortion services:
We have collected testimonies from women undergoing miscarriage management, women who have had much longed-for pregnancies, sexual assault victims accessing services, partners of those accessing care and even refugees, who have all been harassed and intimidated through a variety of methods of harassment. It is very important to us that, when we bring it down to the base level [...] it is the presence of somebody targeting you for going for a medical procedure and making a judgement about you that is unacceptable1.
Most of those providing evidence in support of the Bill highlighted the positive impact they believed the introduction of safe access zones would have on patients, staff and others. Lily Roberts told the Committee:
If buffer zones had been in place when I had my experience, they would have made me feel really safe. I do not think that it is too much to ask for safety when you are accessing healthcare1.
| Article 8: Right to respect for private and family life |
|---|
| 1. Everyone has the right to respect for his private and family life, his home and his correspondence. |
| 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. |
| Article 9: freedom of thought, conscience and religion |
|---|
| 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. |
| 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. |
| Article 10: freedom of expression |
|---|
| 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. |
| 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. |
| Article 11: freedom of assembly and association |
|---|
| 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. |
| 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State. |
Under Article 9 of the ECHR, the right to hold and change beliefs is absolute. This right protects both the freedom to hold, and to not hold, particular beliefs. However, a particularly important consideration in the context of this Bill is that the freedom to manifest religion is not absolute, so can be subject to proportionate limitations.
Articles 10 and 11 are closely linked. Article 10 covers the freedom to express ideas and to give and receive information. Article 11 covers the right to peacefully protest and to further one's interests by joining with other people. Both rights cover views which may be annoying or offensive to others. However, neither right can be used to justify behaviour intended to stop other people from exercising their rights under the ECHR.
As discussed earlier in this report, many stakeholders contested the language used in relation to the proposed creation of safe access zones and felt this led to a bias against those who participated in vigils. Dr Mark Pickering from the Christian Medical Fellowship summed up feelings around use of the words 'protest' and 'safe' in relation to the Bill and accompanying documentation:
the bill’s title contains the phrase "safe access zones". I do not think that, for those trying to get to premises, there is an issue of safety or even of access. The real question is about influence, and there is an assumption in much of the discussion around the issue that any influence that might lead a woman to make a different choice, such as Alina Dulgheriu did, is always negative and should be viewed in terms of protest. We are given the impression that people will be shouting or waving placards—Isabel Vaughan-Spruce has cogently talked about the perception that is given—but, actually, we are generally talking about the provision of information, and an effect of the bill will be to reduce the information that is being given to women1.
Individuals and organisations opposing the Bill who contributed to the Committee's scrutiny explained what they believed motivated people to engage in vigils outside of abortion services; they told the Committee that these motivations were primarily to help and support women, and to engage in prayer. Some opponents of the Bill who responded to the Committee’s call for views expressed a concern that the Bill would have a negative impact on people accessing services by denying them access to information about support available to people if they wish to continue with a pregnancy.
Alina Dulgheriu and Isabel Vaughan-Spruce spoke to the Committee about their personal experiences: the former on accessing abortion services and legally challenging a public spaces protection order in Ealing; the latter on participating in vigils in England and experience of being challenged by the police for praying outside abortion services in Birmingham.
Alina spoke of her experience accessing an abortion service in 2011. She told the Committee that she had no emotional or financial support at the time and that she felt that she had no other option but to seek a termination. Alina described the impact of her encounter with those participating in a vigil outside the clinic:
The day that I turned up to my abortion appointment, a volunteer outside the clinic gently gave me a leaflet. Somewhere beneath the palpable anxiety and pressure, I felt that it provided me with exactly what I was longing for. Some would say that I had already chosen abortion, but the truth is I did not choose it. The pro-life vigil gave me the hope I was searching for. Had I not received the support from volunteers, my beautiful daughter would not be here today. I weighed up the two options I had before me and I chose motherhood; I chose to accept help. It was not easy, but without the support of the group who had given me that leaflet, I could not be proud of the life my daughter and I have charted out together1.
Alina went on to describe how her experience led her to legally challenge a public spaces protection order in Ealing on the grounds that it was infringing freedom of expression. She argued that, in her view, the current Bill would similarly limit freedom of expression, would criminalise those seeking to support women, and would deny women access to the same help and support from which she felt she had benefited:
I am alarmed at this attempt to introduce safe access zones in Scotland. That will criminalise volunteers outside abortion clinics, such as the one who approached me [...] Removing the option to receive help to keep a child in case we feel offended is deeply patronising and assumes that women cannot make a decision for ourselves or that we might choose the wrong option. My case is not a one-off: there are hundreds of women, just like me, who have benefited from this support. Yet, we are all too often ignored in the single-minded race to encourage access—without caution—to abortion for vulnerable women. Other women who would rather keep their babies than have an abortion will be denied valuable assistance in the planned safe access zone. The law will turn anyone who volunteers advice into a criminal1.
Similarly, an individual respondent to the Committee's call for evidence stated that in their view:
The first victims of this Bill would be the women accessing abortion facilities. They would be deprived by a chance to talk to someone who could potentially provide the support they are looking for, either because they found themselves under practical or financial difficulties, or because under emotional stress or, worse, because subjected to coercion4.
Many respondents to the Committee's call for evidence also reported examples of people who they said had welcomed support from people outside abortion services. The Christian Institute argued that, while part of the argument behind the Bill was supposedly to enable women to make autonomous decisions around abortion, they believed it would deny those who were less sure of a particular option the opportunity to hear other points of view, concluding:
To shelter women from alternative viewpoints just because of their proximity to an abortion clinic is condescending. It infantilises women5.
During an informal session, the Committee heard from women who had previously accessed abortion services and were opposed to the Bill. As part of this experience, both participants reported having encountered a lack of emotional support, counselling or advice on alternatives to abortion. Both participants described how their past experiences had subsequently motivated them to take part in and/or co-ordinate 40 Days for Life vigils in Edinburgh. One participant stated that the reason she attended vigils was to help other women avoid what she went through.
Isabel Vaughan-Spruce spoke about her experiences of praying near abortion centres in Birmingham and of speaking to women or couples over the last 20 years, as well as her work organising a volunteer group. She described her experience of vigils as being that people would stand in groups of twos or threes near the abortion centre, with no posters, and would offer "a leaflet of help to anyone who was entering". Isabel also spoke about her subsequent experience of the introduction of safe access zones in Birmingham and the negative impacts she believed their introduction had had on those participating in vigils and on wider society:
My volunteers now pray outside the nearest Catholic church, which is a long way from the abortion centre. Locals have now said that they want the church to be moved, and my volunteers have been screamed at, spat at, sworn at, and even physically assaulted. Viewpoint-based censoring will inevitably expand beyond the buffer zone. The zone has created a huge amount of division in the area, with locals who support us telling me that they are terrified that their neighbours might find out what their beliefs are. The community has become polarised and it has fostered the sense of intolerance that was the real issue to start with. Pro-lifers have been demonised. We have even had politicians calling us perverts. That has got to stop. We now have a whole section of society being treated as social pariahs for offering help to pregnant women, and proposed new legislation is simply endorsing that1.
When asked about her experience of being arrested in Birmingham, Isabel responded:
[...] when I was first arrested, I was standing near an abortion centre, silently saying my prayers—I was not manifesting that in any way. A police officer asked me whether I was protesting, and I made it clear that I was not. He asked me whether I was praying—he had to ask me because he obviously could not tell—and I said, “I might be in my head, but nothing out loud.” I was arrested on the basis of what I might be praying about. I was very heavily searched on the street, which could be a very humiliating experience. I was then taken to a police station and locked in a cell for hours before being quizzed about what I was praying about, what I had been thinking and what was going on in my head. As I have described, I eventually had to go to court for that, and I was acquitted. Two weeks later, I was standing in exactly the same spot, doing exactly the same thing. This time, six police officers came in a van and told me that my prayers were an offence. When I said that I did not think that prayer was offensive, they became more emphatic and said, “It is an offence.” I was arrested and put on bail for months afterwards. I was investigated for six months. It was a really difficult experience to go through, but I have highlighted and publicised it, because people need to know the reality of what buffer zones really mean1.
Many respondents to the Committee's calls for evidence who were opposed to the Bill raised concerns around the impact of the Bill on Article 9 rights within the ECHR, particularly highlighting those rights related to silent prayer and to restrictions in relation to what activities could happen on private property, which are considered in more detail later in this report. Many of these respondents described the proposed legislation as draconian, arguing that, in their view, the introduction of safe access zones would threaten their freedom of religious expression. Some felt that the Bill would discriminate against those with religious beliefs and those who hold pro-life views. An individual respondent expressed an opinion that the Bill was "dressing up draconian restriction on religion and free speech in a cloak pretending to protect people8". In its written response, the Society for the Protection of Unborn Children stated:
This proposal is a direct assault on the rights of peaceful citizens who will be targeted not because of anything they have done but rather on the basis of their political opinions and religious beliefs. The Bill will have a disproportionate impact on members of religious minorities (in particular, Roman Catholics)9.
Isabel Vaughan-Spruce similarly argued:
I think that that is discriminatory against people of faith, because our prayers are simply our thoughts directed towards God, but there are clearly serious human rights concerns, too. Our thoughts are simply being censored now1.
Bishop John Keenan told the Committee that, in his view, the Bill would essentially criminalise people's rights and, of particular concern to him, their thoughts:
The human right that is absolute and which cannot be balanced is freedom of thought; many other rights can be balanced, but I think that freedom of thought is the one that is absolute and therefore cannot be balanced against anything [...] when you criminalise rights, that is a failure—it is a defeat. Before we take away a right, we have to ensure that every option is exhausted. It has to be necessary to do so; there has to be no other means of achieving the desired outcome. The measure also has to be proportionate, but I think that the bill proposes unlimited fines. Further, there has to be a way of removing the provision once the issue is no longer there. The right has to be respected—that is the important thing, and that is why we do not want to criminalise a right1.
Many individual respondents to the Committee's calls for evidence who were opposed to the Bill expressed concerns around its impact on the rights set out in Articles 10 and 11 of the ECHR, seeing it as restricting freedom of expression and the right to protest. The Evangelical Alliance expressed opposition to the restrictions in the Bill, viewing it as an attempt to control what should happen in spaces that were otherwise available to the general public12. The Free Church of Scotland was of the view that proposals to make it illegal to discuss abortion in safe access zones was making a statement to society that it was inappropriate to express anti-abortion views13. Bishop Keenan argued in his evidence that:
essentially, the pro-life view is fairly mainstream in Scottish society. It is held reasonably, and those who hold it hope that they do so on the basis of some scientific evidence of the nature of what happens in the womb—we would say the nature of the child in the womb; that is how we would put it. It is a reasonable position to hold in Scottish society. It is held by the Catholic Church in Scotland and it is held in good faith1.
Isabel Vaughan-Spruce also argued that, in her view, restricting freedom of expression and the right to protest on public land was inappropriate, as was restricting freedom of thought:
We have always been respectful of private property. However, we are talking about a public street, and that creates a very different situation. We are talking about somebody not being able to pray on a public street. It is clear that other people are allowed on the street. When I was standing outside the abortion centre, people were standing in different places on the street doing different things—they might have been looking at their phone or stopping to chat with friends. It is clear that, if it is a public street and we are simply banning thoughts that are directed towards God, that is really concerning. Even if somebody else does not understand why we are doing that or its importance—I appreciate that other people might not understand or believe in all the things that I believe in—criminalising my thoughts because they are directed towards God is discrimination1.
In its written submission to the Committee, Amnesty International noted that the right of peaceful assembly set out in Article 11 of the ECHR includes the right to choose the time, place and "modalities" of the meeting (within the limits of paragraph 2 of the right). It further highlighted comments from the United Nations Human Rights Committee that restrictions on peaceful protest should be based on individual assessments and that broad restrictions on location should be avoided16.
Although the provision of information is not directly referenced on the face of the Bill, the Committee has considered this subject at length throughout its scrutiny of the Bill. The evidence submitted to the Committee can be grouped under the following two categories:
Evidence related to information provided by abortion services
Evidence related to information provided by those attending vigils
Evidence related to information provided by abortion services
The Committee heard a range of views about the information provided by abortion services to those accessing those services.
Some of those opposed to the Bill who responded to the Committee's call for evidence thought that, in many cases, people seeking abortion services did not receive adequate information or any information at all about alternatives to abortion from service providers. Margaret Akers from the Society for the Protection of Unborn Children told the Committee:
Although this is not universal, a great number of the women whom I work with feel that they were not properly counselled at a clinical level ahead of their abortion, and that they were not given all the information that they needed to make an informed choice about the alternative options that were available to them and services that they could use1.
Alina Dulgheriu spoke about her experiences attending abortion services in England and told the Committee that, in her view, no additional information and support was provided by those services beyond the services themselves:
When I went to an abortion clinic, I asked for help and whether there was an alternative to abortion, because I did not want to do it, but they said that they only offered abortion and that there was no other help [...] facilities are extremely biased. I asked whether specific help was available, and I was told that there was nothing. There was no financial help, and there was not even someone who could provide emotional support; the facility offered only abortion. Even when I called again to ask it for help, I was given the same answer1.
During informal evidence, participants with experience of accessing abortion services in Scotland and who were opposed to the Bill described those experiences as having lacked emotional support, counselling or consideration of alternative options. One participant described her experience of the process of accessing an abortion as being like "a conveyer belt", with no time to process or consider options and an assumption by staff at the abortion services that she had already reached a clear decision as to what she wanted to do. She reported that her experience had been that no support was offered, other than being told she was "doing the right thing". The same participant said she didn’t feel there were opportunities to exit the process of getting an abortion once she had started down that path.
Contrary to these experiences, Alice Murray told the Committee she had received extensive information and support when accessing abortion services in Scotland:
[...] my experience when I went to the clinic was that I had a huge opportunity to learn about other options and to discuss my situation. That was one thing that I took away from it. I remember saying to a friend that I was really surprised by how long and extended that conversation was. We went through why I wanted to have an abortion, whether I was in a safe situation, whether I had a partner—a variety of safeguarding questions—and I found myself repeating, “No, I really want this.” I was surprised at how big that opportunity was3.
Similarly, Lily Roberts emphasised the comprehensive nature of support and information she felt she was given when accessing abortion services:
I will add briefly to what Alice Murray said. I cannot speak for everyone but I, too, had very comprehensive options given to me. It is not the case that, if you walk into a clinic, you are instantly just granted an abortion. That is not how it goes down. Given the legal system and how those services are accessed, I had two appointments, both of which involved a conversation of about 30 minutes with healthcare professionals. You have to get the approval of two doctors. It does not instantly happen3.
In relation to the information provided by abortion services to their patients, Rachael Clarke from the BPAS emphasised that abortion providers throughout the UK operate according to international and national best practice and that these providers are required to be both appropriately qualified and regulated:
The Royal College of Obstetricians and Gynaecologists is clear that, within healthcare services, counselling should be available to women if they require it. It is also clear that, if women do not require it, they should not be forced to go through it, because, ultimately, a very large number of women come to the service knowing that that is the decision that they want to make. They have had that conversation with their friends and family and they do not need to sit in front of a healthcare professional and justify again and again why they need that care [...] regulation is hugely important. As providers, we are qualified to provide that care and are highly regulated as healthcare professionals3.
Professor Sharon Cameron from the Chalmers sexual health service in NHS Lothian outlined the types of additional support made available to women accessing abortion services by service providers:
If they are unsure of their decision, women have the option to discuss it further and get decision-making support. Women, for whatever reason, may struggle after an abortion; they can feel a variety of emotions. Postabortion counselling is available through the national health service6.
Dr Chris Provan from the RCGP also set out his views on the supportive role of primary care in these scenarios:
Often, patients come to us because they have an existing relationship with us involving support through counselling. Our role is to non-judgmentally give the woman information so that she can make a decision about what she wants to do, given her particular individual circumstances6.
Dr Pickering from the Christian Medical Fellowship contested the view that information provided by pro-abortion campaigners, abortion services and medical journals was always accurate, arguing that, in his view, there was a "campaign to show that there are no negative consequences from abortion" He went on to argue:
we will often hear pro-abortion campaigners saying that there is no evidence that an abortion can affect the mental health of a woman detrimentally, and yet we hear first-hand testimony from thousands of women who go to pregnancy crisis centres, sometimes for post-abortion support, and who will talk eloquently about the extreme mental distress caused by the memory of the abortion that they went through1.
One of the participants in an informal session with the Committee, who was opposed to the Bill, shared her previous experience of accessing abortion services She raised a concern that, in her view, there was a lack of data and information sharing between abortion services and primary care. Speaking of her own experience, she said that the abortion service she visited did not ask for her NHS number and that, in her view, this meant that her procedure was not associated with her health record and no connection was made between the abortion and her subsequent depression. She suggested that, in her opinion, this was routine practice and, as a result, there was no way of knowing the real effects of abortion on mental health.
Margaret Akers questioned whether relevant standards were being consistently followed by abortion services in the provision of a comprehensive range of information to the users of those services:
The trouble, though, is that there is already informed consent legislation, which should mean that all those things are covered, yet what I am seeing consistently is the women whom I work with still not sufficiently getting the information that they feel they are entitled to. Even where those procedures are in place, it seems sometimes like they are not being followed1.
Dr Mark Pickering argued that information provided by abortion services tended to be focused on the procedure and potential complications. On this basis, he argued there was a need for further information to be made available to those accessing abortion services outside of those services:
The women going there will not generally be offered the kind of information that might be offered in, say, a pregnancy crisis centre on financial support, community support and other things1.
Ms Akers similarly argued that information and support should not only focus on abortion procedures themselves, but should take account of the wider circumstances in which abortion services may be being accessed:
One interesting thing about abortion compared with other medical procedures is that a woman considers abortion often because of external circumstances rather than specifically health-related circumstances, although that is not exclusively true. The informed consent needs to be about not only the medical things around the procedure: it should include questions such as, "Are you having this for financial reasons?", "Are you aware that this financial support is available?", "Are you aware this housing support is available?", and "Do you need to be directed to a shelter or somewhere you can be safe from a partner or family member from whom you are at risk?" Those are the sorts of things that women need to be provided with1.
Evidence related to information provided by those attending vigils
The Committee heard evidence that one of the reasons given by those engaged in this activity for undertaking vigils in proximity to abortion centres was to provide information to those accessing abortion services, whether prior to or after having undergone an abortion procedure. Dr Mark Pickering argued that one "effect of the bill will be to reduce the information that is being given to women1".
Article 10 of the ECHR protects freedom of expression, including the right to hold opinions and the right to give and receive information without interference by public authorities. Many respondents to the Committee's call for evidence who were opposed to the Bill were of the view that those attending vigils offer alternative information to those accessing abortion services. They presented examples showing there were people who had welcomed the information provided by those engaged in vigils outside abortion services. Such examples were presented as part of Alina Dulgheriu's testimony as well as during some of the Committee's informal engagement.
At the same time, Members have heard concerns from those who support the Bill regarding the accuracy of the information provided by anti-abortion demonstrators.
As part of her testimony, Lily Roberts told the Committee that her partner had been approached by someone engaged in protest outside the abortion service where she was undergoing an abortion procedure, who handed him leaflets which she described as "containing misinformation about healthcare3".
In its written submission, the Royal College of Obstetricians and Gynaecologists (RCOG) expressed concerns about the accuracy of the information provided by anti-abortion demonstrators, which in their view could be harmful to women’s health:
The leaflets that protestors hand out have been found to contain disturbing amounts of false information, including that abortion causes breast cancer and leads to depression and suicidal intentions. The RCOG has been especially concerned by unproven claims that progesterone can be used to ‘reverse’ an abortion, which not only causes further distress and confusion, but can also be dangerous for women’s health14.
Professor Sharon Cameron provided details of the leaflets staff had seen being distributed outside of the Chalmers sexual health service:
The leaflets usually show pictures and images of a very advanced fetus, which is very emotive, but the vast majority of women who attend the services are at a very early stage of pregnancy. The leaflets will also include false facts about the long-term effects of abortion. There is good evidence—guidelines from the Royal College of General Practitioners and the National Institute for Health and Care Excellence are based on the best evidence—that shows that there are no long-term effects of abortion in terms of adverse effects on fertility or in relation to breast cancer, but the literature that is given out will allude to false facts, myths and misconceptions such as those6.
A number of healthcare professionals, including Dr Chris Provan from the RCGP and Lesley Sharkey from NHS Tayside, made an argument that, on the basis that they were not qualified healthcare professionals, the literature distributed by anti-abortion protestors should not be regarded as medically factual. They both argued the importance of ensuring conversations about abortion procedures take place with appropriate medical professionals or specialist nurses and midwives who are trained to provide those services6. Dr Sarah Wallage from NHS Grampian raised concerns about the negative impact on patients of literature that was misleading or inaccurate, and the additional measures services had to take to address this:
we sometimes have to counter misinformation with patients who are requesting an abortion or with other people who attend the service and mention the misinformation6.
On the other hand, both Margaret Akers and Bishop Keenan told the Committee that, to the best of their knowledge, literature containing 'misinformation' was not provided at vigils in Scotland. Ms Akers went on to say:
It is my understanding that none of the pro-life vigils that currently take place in Scotland involves leafleting people going into clinics, and that that has been the case for years. My understanding from people who attend vigils is that they do not hand things to people who are going into clinics. They might have certain things on hand—which I believe might have been presented to the committee—just in case a discussion starts and somebody asks a question, to direct them to further sources of support. However, people do not hand out leaflets to everyone who passes1.
On 5 March, Professor Sharon Cameron from Chalmers sexual health service described leaflets distributed outside the service as containing emotive imagery of a “very advanced fetus” and commented that they “also include false facts about the long-term effects of abortion6”. During the evidence session on 12 March, in reference to Professor Cameron’s comments, Bishop Keenan provided information leaflets to the Committee that he had sourced as an example of this literature:
We were able to source examples of the leaflets that were referred to, and we have them here, if you would like them. There is a blue leaflet, a green leaflet and a pink leaflet; they have a London telephone number, so we think that, in the past, they were handed out in England. When I look at them, I can see that they tend to be factually accurate. The references are NHS sources and fairly reputable journalists. If you would like them, we would be happy to pass them on to you [...] As I have said, we will do so, only to help the committee with the leaflets that have been referred to. Others will know better than I do, but our understanding, from having spoken to organisations, is that those leaflets are not used at all in Scotland. 1.
Reverend Stephen Allison from the Free Church of Scotland told the Committee that the Church would condemn leaflets that were inaccurate or that provided inadequate information. At the same time, he raised concerns that the implication was being made that only healthcare providers should be entitled to disseminate information, before going on to argue that abortion is not only a medical issue:
There is a broader concern about the impression being created that only healthcare professionals can give out any information about any issue, but particularly abortion, because there are ethical and moral concerns as well, which are not going to be developed scientifically [...] There are a lot of factors beyond medicine connected to abortion that the NHS is not necessarily able to provide information on, and there is not the money or resource to provide certain types of support to women facing such decisions. Certain organisations are doing some amazing work—it is not necessarily those that are involved in protesting, but there are organisations that provide helplines and support to people to consider other options. I do not think that you should restrict it by saying that only medical professionals can decide what is appropriate medically1.
Some stakeholders raised concerns that the legislation could set a precedent for the wider application of safe access zones in other policy areas. Reverend Stephen Allison expressed the view that legislation often sets out very clear parameters, but suggested that human rights considerations within legislation can be "more nebulous", creating the potential for these measures to be used for other purposes in the future:
There is the potential for the bill to be extended to other areas because rights that are so broadly defined could later, as society changes, be applied in different areas than they are today. That is how the bill might start to set a precedent with abortion. I accept that it does not cover other areas, but it might set a precedent in one area that people who want to make the arguments could use in others. Safe access zones have, in a relatively short period, arisen around the world all at once because people have moved to discuss the issues. We do not know what the next thing around the corner will be1.
Eilidh Dickson from the SHRC addressed these concerns directly in her evidence to the Committee, arguing that any extension of the use of safe access zones in other situations would not be automatic and would have to be subject to the same level of prior scrutiny as the current Bill before it could be introduced into law:
I have no evidence that the proposal is being considered elsewhere for other issues [...] However, even if somebody introduced legislation in five or 10 years to replicate buffer zones in other areas, we would still have to apply the same legal tests around fair balance, necessity and proportionality—all the things that we are discussing today. Therefore, you would look at that proposal on its own merits, and if one did not, it would be capable of being challenged within the current legal framework under the Human Rights Act 19981.
Dr Catriona McMillan emphasised the narrow scope of the Bill, before arguing that, from a legal point of view, "the case for any interference with human rights must always be made on a case-by-case basis". In this context, she further set out the view of the Law Society of Scotland that the Bill should not be seen as necessarily setting a precedent for potential future action in other policy areas:
It is important for us to underline that we do not think that the bill should be seen as setting a precedent for curbing other kinds of protest. If it were to be seen as setting such a precedent, any similar attempts would need to go through a similar process of scrutiny, so it should not be viewed as a slippery slope1.
During her evidence, the Minister for Public Health and Women's Health addressed concerns about the risk of creating a 'slippery slope', but ultimately rejected the notion that any such risk was being created by the Bill:
If the bill passes, all that it will prevent is the direct targeting of individuals as they take what might be the most deeply personal decision of their lives. That also explains why the bill does not set a precedent.
The Committee has considered evidence from stakeholders on whether the restrictions set out in the legislation are proportionate to the aim.
During his evidence to the Committee, Bishop John Keenan acknowledged the need for balance under human rights legislation. He argued that the Bill does not strike the correct balance:
No one is saying that there should not be balance or that people should be right inside an abortion facility, harassing people. However, we are saying that balance should not mean that a legitimate point of view should be made invisible. That is what seems to be the case here; the bill is saying that this is okay, as long as nobody—indeed, nobody in the facility or the hospital—sees it. We would say that that is not about balance1.
Dr Rebecca Mason offered a different view that the Bill would not and does not seek to stop anti-abortion activity. Instead, she argued that the Bill was seeking to restrict this activity within a defined area where it could interfere with access to healthcare:
We believe that the bill does not seek to stop or ban anti-choice protests or activity, and the majority of young women that we engaged with were passionate about that and agreed that the safe access zone should apply to both pro-choice and anti-choice protests. One young woman said: “It is an equal bill, which would prioritise the peaceful experience of a young woman seeking access to healthcare.” Our organisation believes that that is a fair way of policing quite a difficult and contentious issue. We think that the bill is an attempt not to restrict freedom of expression, religion or protest, but to safeguard public health and protect the right of women to access abortion and associated reproductive healthcare without obstruction2.
Lucy Grieve underlined the importance, from her point of view, of focusing on the human rights of women accessing services:
The fact that people have a right to freedom of speech, freedom of assembly or whatever does not mean that they have a right to an audience. They do not have a right to have people listen to what they have to say, particularly vulnerable women who are trying to uphold their own rights, such as medical privacy and the right to a personal life. When we are asked questions about human rights, the questions always revolve very much around the rights of the protesters and the people attending the vigils, but, actually, the rights of the women who are being targeted are very often left as a last thought2.
The Committee is of the view that a precautionary approach is needed when developing and implementing legislation that has implications for conflicting human rights, whereby any restrictions on human rights are kept to the minimum necessary to meet defined policy aims. In this context and based on the evidence it has received during its scrutiny at Stage 1, the Committee has concluded that the restrictions the Bill imposes on those human rights as set out in Articles 8, 9, 10 and 11 of the ECHR are proportionate to its aims, namely strengthening the ability of women seeking an abortion to exercise their own rights under Article 8.
The Committee acknowledges the concerns raised by opponents of the bill about the threat to the perceived legitimacy and expression of their views on abortion in public spaces.
The Committee recognises the right to protest and private thought as a cornerstone of a free democracy. However, given the clear scope of the current bill, the committee is assured that any extension of “safe access zones” or similar prohibition of vigils or protests would require additional and separate primary legislation and the scrutiny and proportionality assessments that accompany it. The Committee nonetheless asks the Scottish Parliament to be aware of these implications in future scrutiny.
The Committee considers it important that the legislation is subject to ongoing review to ensure restrictions continue to be proportionate to the legitimate aims of the Bill as circumstances change over time. To enable this, the Committee calls for provision to be made to ensure the Bill's implementation undergoes regular post-legislative review to ensure its continuing effectiveness, including the provision of regular updates on its implementation to the Scottish Parliament. It would also be helpful to clarify which people or bodies are responsible for collecting ongoing evidence about the impact of safe access zones on both people accessing abortion services and those engaged in protests and vigils.
This part of the report considers provisions in the Bill that relate to protected premises, in the following order:
Section 1 – Meaning of “protected premises”
Section 3 – Notification of proposed protected premises etc.
Section 10 – Power to modify meaning of “protected premises”
Section 1 of the Bill defines protected premises as "a building that is or forms part of a hospital at which abortion services are provided", "or a place that is approved under section 1(3) of the Abortion Act 1967 for the purposes of that section other than a place forming part of a class of place that is so approved".
Section 3 of the Bill outlines the actions to be taken by Ministers should a new protected premises be proposed. The operator of a proposed protected premises must notify Scottish Ministers of the day when abortions services will begin to be provided. Upon receiving a notification, the Scottish Ministers must update the maintained list of protected premises and safe access zones, identify when the proposed safe access zone will come into effect and publish the updated list. The list must be published 14 days in advance of a safe access zone coming into effect.
Most stakeholders who expressed support for the Bill broadly agreed with the definition of protected premises as set out in the Bill. However, some thought the definition proposed was too narrow and felt that the definition should be extended to include other services involved in abortion care, such as counselling, GP practices and pharmacies. The RCGP expressed concern that anti-abortion protests may relocate to within proximity of premises not currently covered by the definition:
RCGP Scotland has concerns that in the case that protests are prohibited at premises which provide abortion, then other premises linked to the procurement of abortion may become the new target of these demonstrations. The Abortion Services (Safe Access Zones) Act (Northern Ireland) 2023 extends the definition of "protected premises" to places which provide "information, advice or counselling relating to treatment for the termination of pregnancy". The addition of a similar amendment to the Abortion Services (Safe Access Zones) (Scotland) Bill could ensure safety for patients and staff at GP practices1.
During oral evidence, Dr Chris Provan from the RCGP expanded on this further:
I mentioned the definition of areas covered because one of the consequences may be that protests move to other areas. They could occur in primary care, aftercare, counselling and other settings. We have to think about the knock-on effect. Patients should also be able to access other services that are often co-located around sexual health services, such as rape crisis, counselling and support services. There should be no barriers to that2.
Many stakeholders opposed to the Bill felt, conversely, that the definition of "protected premises" was too broad, and could prevent demonstrations in other settings, including private premises. The Bishops’ Conference of Scotland said:
Notwithstanding opposition to the Bill in principle, the definition of ‘protected premises’ is extremely wide and is worded as such to potentially include GP surgeries, sexual health clinics, pharmacies and counselling services which could result in hundreds more zones being set up and thus hundreds more locations where basic human rights are infringed and offers of support denied to vulnerable women3.
The concerns raised by the Bishops' Conference of Scotland relate to provisions in section 10 of the Bill which includes a power for Ministers, through regulations, to modify the meaning of "protected premises" in two ways:
Firstly, this provision would ensure that if new settings, such as pharmacies, are approved to provide abortion services under the Abortion Act 1967, these locations could be incorporated into the definition of "protected premises", and a safe access zone could be established around it.
Secondly, this provision would also give permission for Ministers to modify the definition of "protected premises" to include places where services related to abortion, such as counselling services, are provided.
Under subsection (4), the Scottish Ministers are required to carry out a consultation and must consult the provider of the treatments or services at the building or place, or the operator of the building or place. If the Scottish Ministers consider it appropriate to do so, they must consult the Health Board, local authority and any other person they consider has an interest in the matter. The regulations are subject to the affirmative procedure.
The policy memorandum states that these provisions are intended to ensure that the protections granted by the Bill could adapt to any future changes in abortion service delivery. Healthcare providers expressed support for these provisions as a means of future-proofing the Bill to provide flexibility in the provision of services. Rachael Clarke from BPAS set out the context for why she believed such a provision might be necessary:
[...] there has been quite a revolution in the provision of abortion care in recent years, particularly in relation to the administration and use of early medical abortion and early medical abortion at home. In Scotland, that is now available up to 12 weeks. It involves taking two sets of medication at home. Prior to 2018, both were required to be taken in a clinic. We have seen quite a rapid change to the way in which women can engage with care. That can be done in a way that perhaps we did not see when that drug was first licensed in the early 1990s, and we certainly did not see it in 1967, when the law was passed. When legislation limits how authorities and ministers can act in relation to updates in best practice and healthcare, those limitations really impact on women. In some ways, it is possible to see where that might develop in terms of GPs, but I would also like us to think bigger. Just because we provide abortions in hospitals and stand-alone clinics such as Chalmers and Sandyford, that does not mean that, in 20 years, when we almost certainly will still need safe access zones, those will not be needed on new sites. For us, it is essential that there is the power to enable ministers to reflect on current best practice and make sure that women are protected, no matter how that changes4.
In addition to 'future-proofing' for future healthcare advancements, the Member in charge of the Bill, Gillian Mackay, further argued the need for these provisions in terms of ensuring women were able to access the healthcare that they need, free from fear and judgement:
Currently, we see protests only at specific types of settings, so it is right that the bill is limited to the 30 premises that are captured by the 1967 act. There would be a difference if GP surgeries or pharmacies started to be designated under that act, but they would still be captured with the relatively small number of premises that are included now. As drafted, the bill provides enough flexibility to ensure that, should we see behaviours at services where we do not see them at the moment, we could move to protect those services as appropriate5.
Rob Gowans from the ALLIANCE raised concerns over how the implementation of safe access zones could result in anti-abortion activity being displaced to other locations and argued for the need for there to be a process to review the legislation in the future:
One thing that we have considered is that people protesting outside hospitals might start congregating around bus stops and public transport hubs. We recommend that post-legislative scrutiny be undertaken once the act has been in operation for some time in order to see what has changed in practice, whether we should add provisions to cover other cases and whether the legislation needs to be changed to reflect different circumstances around facilities in Scotland6.
Some stakeholders welcomed provisions to be able to extend the definition of protected premises, but also cautioned that safeguards may need to be added to the Bill given that creating safe access zones around GP practices and pharmacies could cover significantly larger areas than the initial 30 sites. For example, Eilidh Dickson from the Scottish Human Rights Commission, suggested the inclusion of additional safeguards such as a requirement to consult and to undertake a fair-balance test to ensure the impacts on human rights remain proportionate if the definition of protected premises were to be extended6.
The Committee agrees with the definition of "protected premises" as set out in the Bill.
At the same time, the Committee notes that any future extension of this definition is likely to have an impact on the human rights as set out in the ECHR of those protesting or undertaking vigils. To ensure the impact on human rights are assessed and remain proportionate to the aims of the bill, any future changes to this definition should be subject to a further enhanced level of parliamentary scrutiny to that currently provided by the Bill.
This part of the report considers provisions in the Bill that relate to protected premises, in the following order :
Section 2 – Establishment of safe access zones
Section 7 – Extension of safe access zones
Section 8 – Reduction of safe access zones
Section 9 – Cessation of safe access zones
Section 2 of the Bill establishes a safe access zone for each protected premises, which consists of the protected premises, their public grounds, and any other public land within 200 metres of the protected premises. The policy memorandum states that not all areas within the 200m boundary are included within the safe access zone despite being within the boundary of that zone. It provides examples of what is included or excluded from a safe access zone:
Safe access zones include public spaces and partially enclosed areas such as bus shelters.
Safe access zones don't include fully enclosed buildings, such as other buildings within a hospital compound, or private premises within a safe access zone1.
This section also sets out a requirement for the Scottish Ministers to publish and maintain a list of protected premises and each related safe access zone. On the day that section 2 of the Bill comes into force, Ministers are required to publish a list containing:
the name and address of each protected premises,
a map of the grounds (if any) of the protected premises that shows the boundary of the grounds,
the distance between the edge of the protected premises and the boundary of the safe access zone,
a map showing the boundary of the safe access zone, and
the day on which the safe access zone takes effect.
The Member in charge, Gillian Mackay MSP, ran a public consultation on the proposed Bill between 19 May and 11 August 2022. The consultation sought views on the proposed introduction of safe access zones with a radius of 150m around healthcare facilities providing abortion care within Scotland. The Bill, as introduced, makes provision for safe access zones comprising a radius of 200m around abortion services.
Research commissioned by the Committee describes the relative size of safe access zones provided for by comparable legislation in other jurisdictions. This research shows that, compared to these other jurisdictions, the current Bill would establish the largest safe access zone, with the radius of safe access zones in other countries and territories ranging from two metres to 150 metres (although it should also be noted that some jurisdictions permit safe access zones to be extended on a case-by-case basis).
Many of those submitting evidence who were opposed to the Bill felt that the proposed radius of 200 metres was too large, with some arguing that such a radius was disproportionately large in comparison to those in place elsewhere in the UK. Some stakeholders noted that the Member's original consultation on the proposed Bill sought views on the introduction of safe access zones with a radius of 150m around healthcare facilities providing abortion care within Scotland and were critical that there had been no prior consultation on a proposed radius of 200m. Reverend Stephen Allison told the Committee:
We have raised concerns about the 200m default, and we also noted that that was an increase from the figure in the consultation proposals. That is concerning, given that there were perhaps many fewer responses to the call for views than there were to the consultation, which means that people have not really engaged with that jump2.
Conversely, respondents to the Committee’s call for views who supported the Bill were broadly in favour of the proposed 200 metres radius. Many of these respondents referenced scoping work conducted by Back Off Scotland and the BPAS, which concluded that a distance of 200 metres was appropriate to cover all locations in Scotland where abortion services are provided. A 200 metres radius was deemed specifically necessary due to the layout of the Queen Elizabeth University Hospital in Glasgow, where anti-abortion demonstrations have taken place for a number of years:
Scoping work undertaken by BPAS and Back Off Scotland in 2022 has shown that 150-metres is a sufficient distance for all medical facilities providing abortion in Scotland apart from the Queen Elizabeth University Hospital in Glasgow. 150-metres from the perimeter of this site would leave a small area of pavement on Hardgate Road (which you have to travel down to access services) available out with the initially-suggested 150 metres. This would create an issue as at this site a significant portion of the maternity unit have windows facing the area in which protestors congregate, and prayers and singing from the group could often be heard from these wards which caused great upset to both patients and staff. Therefore, we believe that in the interest of the Bill, the safe access zones should be extended to 200 meters to make sure that the Bill’s aims to protect all patients and staff accessing services are fulfilled3.
By way of background information, Rachael Clarke told the Committee about the campaign which led to the setting up safe access zones in England and Wales and the rationale that informed the proposed size of these zones, before arguing that the situation in Scotland was different and therefore required a different approach:
We were always concerned about two key things. One was the line of sight and whether women could be watched, observed and potentially filmed as they entered clinics. We were also concerned about whether protesters could identify women when they walked past them. We were concerned that they could see those women go into or come out of the clinic and then catch them when they reached the edge of the buffer zone. We think that a 150m zone solves those problems in almost every part of the country. That is why we chose that distance, rather than because we thought that 150m would be adequate. Lucy Grieve has some really good reasons for why that distance would be inadequate in Glasgow. Having a 200m distance in Scotland would make more sense, particularly because of the site in Glasgow4.
Gillian Mackay MSP addressed the proposed radius of safe access zones in her evidence to the Committee, arguing that the nature of protected sites in Scotland differed from other jurisdictions where abortion services are mostly provided in stand-alone clinics rather than hospital campuses, as is the case in Scotland:
Having had a look at the different ways in which services are delivered in Scotland versus in England and Wales and in Northern Ireland, where there are generally standalone clinics, we saw that the hospital sites that we are dealing with are much bigger and have a greater number of people accessing them. Therefore, potentially, a much greater number of people could experience the protests. As the minister said, we also had a look at how people make their way to their appointments, such as through entrances from car parks or from bus stops, where influence could be exerted to undermine the bill even although people are away from the front door. We have gone as far as we can in terms of the distance without crossing the line into excluding people more widely than is necessary5.
Dr Catriona McMillan noted the Law Society of Scotland view that the size of safe access zones should be consistent across Scotland, but that there should also be scope for variation where appropriate. She went on to highlight the Supreme Court review of Northern Ireland legislation:
Although the initial size of buffer zones is larger than those provided for in the Northern Ireland legislation, the Supreme Court review of the legislation specifically said that even a zone of up to 250m would not be “an unjustifiable restriction on the rights of protesters2.
During evidence, Reverend Stephen Allison from the Free Church of Scotland expressed concerns about the proposal to set the radius of all safe access zones in Scotland at 200 metres, arguing that, in his view, evidence showed this may only be necessary in certain locations:
The Supreme Court talked about 250m being proportionate in some cases, but that concerns cases in which, for certain reasons, there has been a decision to extend the 100m default by 150m. Because this is a blanket proposal, I am quite concerned that most of the discussion has been about the Queen Elizabeth university hospital and the needs there, rather than about what is needed for all of Scotland. If you decide to go down the road of having buffer zones—although we do not think that that is the most appropriate approach—a lower starting point would be preferable2.
He went on to argue that a more nuanced approach may be needed in defining the size of safe access zones as set out in the Bill.
Representatives from NHS boards expressed a contrary view on the radius of safe access zones to those opposed to the Bill. Professor Sharon Cameron from Chalmers sexual health service told the Committee that, in her view "It is important that the 200m would be a minimum8". Lesley Sharkey from NHS Tayside was in agreement, citing the layout of hospital campuses as the rationale for that view:
There are many points of access to various providers’ healthcare facilities. The way that hospitals and healthcare establishments are built nowadays—and have been for the past 50 years—means that people can enter in various places8.
Many of those who did not agree with the legislation raised particular concerns about the potential inclusion of public spaces within the radius of safe access zones. Bishop John Keenan raised concerns about the potential impact of the Bill on public and private premises located inside safe access zones:
This is what happens when you take a measuring-tape approach. As we understand it, a 200m zone around the Queen Elizabeth university hospital or the Chalmers sexual health centre in Edinburgh would take in bus stops, churches, schools, a convent and private residences. As Margaret Akers said, someone who is pretty committed to pro-life might always have had a little pro-life sign in their window. Once you create a zone, if someone complains to the police about that sign or raises that issue with them, the police will have to knock on that person’s door and ask them to justify why they have an “I am pro-life” sticker or transfer on their window. Once you start to have measured zones, that would be inevitable2.
Jenni Minto MSP, Minister for Public Health and Women's Health described the approach that was taken to drafting the legislation as it relates to the proposed radius of safe access zones:
In the work, we looked at whether the limit should be bespoke for each hospital or should be consistent. It was felt, on balance, that consistency is the best way forward, because that will mean that there is clarity for women who are accessing services, for Police Scotland and for people who want to protest or demonstrate. That is another reason for going with a consistent 200m zone5.
The Committee heard a range of views on the subject of signage outside protected premises. On this subject, the Financial Memorandum states:
There is no requirement in the Bill for signage to be displayed outside a protected premises, and there is no expectation at present for signage to be required. However, consultation on this matter will progress as the Bill makes its way through Parliament, and the following section sets out estimated costs in the event that it is determined that signage at all or some protected premises would be beneficial. If signage is installed, the recommended requirements will likely vary from site to site12.
The Minister for Public Health and Women's Health also stated the following in relation to signage:
It is important to show where zones start and finish but, as you have said, there is a point to be made about shining a beacon on where services are provided. We have spoken to the Convention of Scottish Local Authorities about that and we will, as the bill progresses, continue to discuss what we think is appropriate. Hospitals will be required to have a map on their website showing exactly where the zones are. That is a really important way of publicising them that will ensure that everyone has consistent information. We are still discussing signage5.
The Committee recognises the particular nature of abortion service provision in Scotland with protected premises situated within larger hospital campuses as opposed to stand-alone units and with a variety of entry points. It therefore acknowledges the importance of ensuring an approach to establishing safe access zones that is appropriate to Scotland's healthcare landscape. It further recognises the desirability of taking a uniform approach to the establishment of safe access zones across Scotland to provide clarity and certainty as to the parameters of those zones, for those accessing services and for those engaged in behaviour prohibited by the Bill.
At the same time, the Committee questions why the default radius of safe access zones has been set at 200m when evidence suggests a radius of 150m would be sufficient for all but one protected premises currently providing abortion services in Scotland.
The Committee therefore recommends an alternative approach of setting a standard radius of 150m for safe access zones in Scotland and then using the provisions set out in section 7 of the Bill to extend this radius to address the specific circumstances of the Queen Elizabeth University Hospital site.
The Committee heard a range of evidence on the subject of signage being displayed outside protected premises and welcomes the commitment in the Financial Memorandum to undertake further consultation on signage as the Bill progresses through the Parliament.
Sections 7 - 9 add further elements of future-proofing to the Bill, which the policy memorandum states is to ensure safe access zones can continue to operate effectively if circumstances change.
Section 7 of the Bill provides the Scottish Ministers with the ability to extend safe access zones, and for operators to apply for an extension based on individual circumstances. The provisions mean that service providers may apply to the Scottish Ministers for an extension of a safe access zone around their protected premises, if they consider that the existing zone does not adequately protect those accessing, providing or facilitating abortion services from behaviours prohibited by the Bill. This extension can be any distance the provider considers appropriate. However, the Bill stipulates that service providers must have regard to any guidance published by the Scottish Ministers on extension and reduction of zones, and that requests to extend a safe access zone will only be granted if Ministers decide that the request is appropriate. When the Scottish Ministers grant an extension for one zone, they may also extend the size of one or more additional zones if they are satisfied it is appropriate to do so.
This section of the Bill also grants Ministers the authority to extend a safe access zone of their own accord if they consider that the existing zone does not adequately protect those accessing, providing or facilitating abortion services from behaviours prohibited by the Bill. Where the Scottish Ministers choose to extend more than one zone, the Bill does not require that all zones must be extended by the same distance. However, when making an extension, the Scottish Ministers may review other existing zones and the desirability of a uniform approach.
Section 8 of the Bill provides the Scottish Ministers with the ability to reduce the radius of safe access zones, if they consider it appropriate.
Under both section 7 and 8, the list of zones must be updated to reflect any extensions or reductions and must specify the date on which the changes take effect, which cannot be less than 14 days after the list is published. In contrast, reductions in zone sizes take effect as soon as the updated list is published to allow them to apply as quickly as possible.
Section 9 sets out the process for cessation of a safe access zone if the protected premises intends to stop providing abortion services.
On the whole, stakeholders in support of the Bill were supportive of the provisions in section 7 to extend safe access zones, while those who did not support the Bill raised some concerns.
In its written submission, the Chalmers sexual health service argued that its location in Edinburgh city centre and its proximity to other clinical buildings and a public high school could mean that "the zone might need to be expanded to protect patients, staff and the public from the anti-abortion protesters1". Rachael Clarke from BPAS also expressed support for the provisions in the Bill related to the extension of zones and for conferring these powers on Ministers:
It is right that that ability should sit with the minister, because that would mean that any decision would have to be based on evidence on whether that extension is required2.
While supportive of the ability to extend safe access zones, the RCN argued in its written response that the Bill should be amended to oblige operators to consider a request from trade unions to extend a safe access zone, in cases where their members have reported concerns at a particular site3. Colin Poolman from the RCN expanded on this during his evidence:
On extension of zones, there might be a situation in which an operator does not apply for an extension. My point is about the ability of trade unions and professional organisations to seek to get an operator to apply to ministers for an extension [...] From a trade union point of view, we would very much like to be able to have discussions with the operator of services, and we would like, in the legislation, an obligation on operators to consider making an application, if we were to approach them4.
Those opposed to the Bill raised concerns that the provisions to extend safe access zones were too vague and could be exploited by Ministers. The Bishops’ Conference of Scotland suggested in its written submission that the Parliament should consider amending the Bill to introduce an upper limit for the extension of safe access zones to prevent misuse of this provision5. Reverend Stephen Allison from the Free Church of Scotland raised a similar concern during his evidence:
The provision for extension without an upper limit is quite concerning to us— that is quite a broad power that has no real limitations on it. Potentially, you could apply for judicial review of such a decision, but going to court would put an ordinary citizen to huge expense. It would be better if there was more clarity in the legislation6.
With respect to section 8 of the Bill, those who did not support the Bill offered little comment on provisions to reduce the size of safe access zones, while those in support of the Bill raised some concerns.
The main concern raised was that these provisions had the potential to be misused. One respondent to the Committee's call for evidence stated:
I am concerned at the process for the relevant ministers to approve of reduction - for example, a bad actor who did not agree with abortion rights should not be able to set it at a token 1m. There should be strict guidelines under which the size may be reduced below 200m, or an appeal to the judiciary rather than simply posting it on a list7.
This concern was also raised by both the Young Women's Movement in its written evidence and Rachael Clarke from BPAS in her oral evidence. Both challenged the specific wording in the Bill which allows unilateral decisions to be taken by Ministers without consultation. The Young Women's Movement argued that this lack of consultation "undermines the provisions of the Bill8". Rachael Clarke indicated that, in her view, the scope of powers to reduce the size of a safe access zone should mirror the scope of powers to extend a safe access zone2.
Rachael Clarke also argued that no zones should be reduced to a radius below 200m as, in her view, that would undermine the intent of the legislation:
Our position is that, if there is going to be a national 200m distance for safe access zones, that should be the minimum to which zones can be reduced. Therefore, the minister could increase the zone to 300m and then later decide that 200m is fine. However, in our opinion, they should not be able to reduce the distance below 200m, because that would mean that we would lose the value of having national legislation to let women understand what they are walking into and where they are protected2.
Similarly, Professor Sharon Cameron told the Committee she could see no reason for the radius of safe access zones to be reduced:
Knowing the physical locations of services in hospitals and of sexual and reproductive health services, I cannot see that the size could be reduced. One could imagine that, in the future, when services cease to be offered altogether, the protection would cease. However, looking ahead to how service delivery and technology might change, there should be flexibility for zones to be expanded4.
Human rights considerations
Several human rights organisations noted that decisions to extend or reduce the size of safe access zones would need to be human rights-compliant. In their view, this would require systematic and ongoing collation of evidence about the human right impacts of the restrictions imposed by the legislation, and any extension or reduction to the size of safe access zones.
In written submissions, several organisations called for amendments to strengthen the Bill to reduce the risk of it being subject to legal challenge:
The Scottish Human Rights Commission called for the Bill to be amended to include duties to monitor and report on the effectiveness of provisions in a human rights context12.
The Law Society of Scotland called for inclusion on the face of the Bill of maximum and minimum permitted sizes of safe access zones, arguing that providing unlimited scope for the size of zones to be increased could give rise to human rights-based challenges, while unlimited scope for the size of zones to be reduced could undermine the Bill's purpose13.
Amnesty International UK called for the Bill to include a clear assessment process to guide any future decisions to extend or reduce the size of safe access zones. They argue that a human rights framework for the implementation of safe access zones in Scotland should be developed to inform this. They further argued that any decision-making in this area "should be informed by and closely linked to a regular monitoring procedure"14.
The Minister for Public Health and Women's Health and the Member in charge of the Bill both acknowledged the importance of an appropriate level of parliamentary oversight of decisions to change the size of safe access zones. Gillian Mackay MSP told the Committee:
In my consultation, we heard from people who support the bill that urgency is needed when those zones need to be changed, because, generally, they will change because something has happened—a behaviour has developed that has infringed the zone or has made it difficult for it to operate, and there is a need for an extension. I absolutely appreciate that some who support the bill also feel that there needs to be a level of parliamentary oversight to that. Again, I am more than happy to speak to members about that between stage 1 and stage 2, but there needs to be a balance between having the flexibility and ease to move quickly enough and having the appropriate oversight15.
When asked about the potential likelihood that the size of safe access zones might be reduced in future if the behaviours prohibited by the Bill were to cease or to move away from abortion services, Gillian Mackay responded:
The bill provides for the power to reduce the size of a zone. I very much hope that the legislation would have the desired effect and that we would not see any more activity around hospitals. I cannot say in advance how far we might reduce the zones if the behaviours that we are currently seeing ceased or moved to more appropriate places, as we have been calling for throughout the passage of the bill, but it is right that we have that power15.
On the potential for the size of zones to be reduced in the future, the Member ultimately concluded that "if it was proportionate to reduce the zones, the Government would have to look at them in the same manner.15"
The Committee recommends that the Member in charge of the Bill and the Scottish Government consider whether there may be justification for setting minimum and maximum requirements for extension and reduction of safe access zones in the legislation to ensure:
a proportionate approach in terms of the Bill's impact on human rights, and
the potential risk of these powers being misused by Scottish Ministers is eliminated.
The Committee recommends that Scottish Ministers undertake a human rights proportionality assessment before making decisions about reducing or increasing the size of safe access zones and that such a requirement should be included on the face of the Bill.
The Committee recommends that the Bill should be amended to stipulate that processes to either extend or reduce the radius of safe access zones should be subject to consultation with service providers and other relevant stakeholders.
To ensure appropriate parliamentary oversight, the Committee further recommends that decisions to extend or reduce the size of safe access zones should be made by way of delegated powers and that the relevant instruments should be subject to the affirmative procedure.
This part of the report considers provisions in the Bill that relate to protected premises and safe access zones:
Section 4 – Offence of influencing, preventing access or causing harassment etc. in safe access zone
Section 5 – Offence of influencing, preventing access or causing harassment etc. in area visible or audible from safe access zone
Section 6– Exceptions to offences
Sections 4 and 5 of the Bill create two offences to prevent people from engaging in harmful behaviours within a safe access zone. Section 4 of the Bill would create an offence covering people's behaviour in a safe access zone. Section 5 of the Bill would create an offence covering the same behaviour from premises within the 200 metres perimeter, but not included in a safe access zonei, in cases where such behaviour is capable of being seen or heard by another person who is within the safe access zone.
The offences in sections 4 and 5 of the Bill both cover behaviours rather than specific activities. The policy memorandum states that this approach "offers both clarity to service users and providers and anti-abortion groups, while also providing operational flexibility to enforcement agencies". It states: "Such flexibility reflects the reality that it is not practicable to define all potential kinds of anti-abortion activity that could be carried out within a zone, and also allows enforcement agencies to account for the nuances of particular situations". The policy memorandum further states that "pro-abortion activity is also capable of being captured by the offences set out in the Bill1".
The following behaviours would constitute an offence where a person engages in them with the intention to (or being reckless as to whether the effect is to):
influence the decision of another person to access, provide or facilitate the provision of abortion services
prevent or impede another person from accessing, providing or facilitating the provision of abortion services
cause harassment, alarm or distress to another person in relation to that person's decision to access, provide or facilitate the provision of abortion services.
Section 6 of the Bill creates four exceptions to the offences in the Bill. A person does not commit an offence where the person does anything in the course of the following:
accompanying (with permission) another person who is accessing (or attempting to access) abortion services at protected premises but only to the extent that they affect the person they accompany and not others
providing, or facilitating the provision of, abortion services at protected premises
providing other health care at protected premises
engaging in conduct that is lawful under section 220 (peaceful picketing) of the Trade Union and Labour Relations (Consolidation) Act 1992.
The Committee has heard a number of concerns from stakeholders on the offences in the Bill in relation to:
Management and enforcement of offences
Defining influence
Exceptions to offences
Proportionality and appropriateness of penalties.
During scrutiny of the Bill at Stage 1, the Committee has explored several scenarios with stakeholders regarding what would constitute an offence under the Bill and how these could be enforced. This section of the report explores operational management and judgement in relation to enforcement of the offences created by the Bill by Police Scotland, as well as their application by prosecutors.
In her evidence to the Committee, the Member in charge set out a key reason why she felt the Bill was necessary rather than relying on existing law:
Existing law deals with criminal activity once it has happened [...] women have to be traumatised and distressed in the first place. We are seeking to ensure that the deterrent effect is in place so that women do not have to be traumatised as a result of getting healthcare that they are legally entitled to1.
The policy memorandum states that "there does not need to be a demonstrable effect on a specific person" for an offence to occur and that the offences are intended to capture all possible behaviours that could have the effects set out in sections 4 and 5 of the Bill. It further states that "this is an essential part of the provisions to counter some of the drawbacks to existing law, which require those accessing services to make police reports, or recount deeply personal experiences, before action can be taken2."
Superintendent Gerry Corrigan from Police Scotland told the Committee that "there is no existing legislation that deals with the ethos of what the bill is trying to achieve in trying to protect people who are legitimately accessing healthcare services so that they can do so unhindered." He went on to explain to the Committee how protests are currently managed in Scotland, describing how officers at the scene would go through a process of assessment and engagement with those protesting. He concluded that "In general, if a protest is peaceful, settled and static, we will leave the protesters to it, with a couple of safeguards in place, in case it escalates". He went on to state that this Bill would change the definition of what was lawful in this context. He said that current legislation was not sufficient to stop protests that were static and peaceful, but that this Bill would make that action unlawful within safe access zones and therefore enforceable3.
Asked about his experience of enforcing existing legislation and how this might inform how the proposed Bill would be enforced, Superintendent Corrigan told the Committee that, in his view, enforcement of this legislation would be context specific and would require case-by-case judgements to be made:
That will always be open to some sort of interpretation, because it will depend on, for example, what the pictures look like and what the wording is like. A whole lot of circumstances will need to be considered in thinking about whether a crime has been committed. If it has, we can take action at that point3.
In follow up correspondence with the Committee, Superintendent Corrigan expanded further on how prior experience of enforcing existing legislation would inform Police Scotland’s approach to enforcement of the current Bill , concluding:
We would assess each incident on the facts and circumstances that presented themselves to us, primarily around the conduct and attitude of the person(s) present5.
Asked about criticism from opponents of the Bill that the behaviours described in section 4 were wide ranging and unclear and that this would make it difficult to determine whether an offence had been committed, the Superintendent responded that, while contextual information would be key in any scenario, he considered the Bill as introduced to be competent from an operational perspective and that:
My sense is that it would take a bit of writing in the police report to the procurator fiscal to outline the overall circumstances, such as people praying silently, and how they could have the effect of influencing. It feels competent3.
Further to a commitment she gave in oral evidence to the Committee on 19 March 2024 to provide examples of comparable offences in existing law, the Minister for Public Health and Women’s Health drew attention in follow-up correspondence to the following existing comparable offences as also requiring police officers to assess behaviour and to make judgements on offences7:
Threatening or abusive behaviour - Criminal Justice and Licensing (Scotland) Act 2010
Stalking - Criminal Justice and Licensing (Scotland) Act 2010
Domestic abuse - Domestic Abuse (Scotland) Act 2018
Superintendent Corrigan suggested that additional training around operational management would need to be provided to police officers. Detail of what this specialist training might look like was included in Police Scotland's written response to the Committee's call for evidence8. Notably, Police Scotland's response to the FPA Committee's call for evidence on the Bill's financial memorandum (FM) stated that the FM "does not accurately reflect the costings for the design, development and delivery of training of officers9".
The Committee further sought the view of the Crown Office and Procurator Fiscal Service (COPFS) on the criminal offences created in the Bill and requested further detail of what the COPFS guidelines to Police Scotland on prosecution might entail. The response indicated that, in preparing any such guidelines, two key factors would need to be considered. The first of these was that the court would require to be satisfied, beyond reasonable doubt, that there was intent or recklessness to undertake conduct in relation to the behaviours as set out in the Bill. The response from the COPFS pointed out that Police Scotland were already well used to determining this as part of their normal operational management:
Evidence of intent or recklessness may be obtained from a variety of sources, for example from an accused’s admissions, or may be inferred from the surrounding facts and circumstances of a case. Prosecutors and police are familiar with these concepts and deal with these terms in relation to other statutory offences on a daily basis10.
Secondly, the response from the COPFS raised the issue of defining influence in relation to the offences as set out in the Bill, again suggesting that this would be context specific and down to operational judgement:
Influencing is likely to be fact specific: what is objectively capable of influencing a person in one context would be different in another. It is not the view of the Crown that any act (for example a mother taking a child into the hospital for care) could constitute influencing, nor is it likely that the required mental element of recklessness or intent would be established in such circumstances10.
Finally, the COPFS correspondence indicated that no decision had been taken as to whether guidelines from the Lord Advocate would be required for this Bill. It further stated that "any guidelines could not and would not undermine the operational independence of Police Scotland to carry out investigations and take such action as is necessary to deal with any ongoing offending". It also emphasised that it would be "essential that any such guidance should not be relied upon by Parliament to infill any perceived gaps or weaknesses in the legislation10".
Following Simon Brown's evidence, the Scottish Solicitors Bar Association (SSBA) wrote to the Committee to provide clarification, based on past experience, as to how defendants were likely to present themselves in court if charged with an offence under the Bill:
As Mr Brown said in his evidence, we would feel it likely that there will not be an issue in proving to a court that protestors arrested under this legislation were there to protest. Evidence seen so far both in Scotland and in other jurisdictions seems to indicate that those arrested will be quite clear on what their intentions were and it should not be an issue to establish whether or not they intended to commit a crime13.
The correspondence from the SSBA further indicated that there would be additional avenues that could be explored to contest whether a defendant had the intention to influence under the terms of the Bill and for charges to be dropped on that basis:
From a defence point of view, were we to be faced with a situation where we felt an accused had been wrongly arrested and their intentions were not to influence those seeking an abortion, then there are procedures in place where meetings can be sought with senior Fiscals and the case discussed. If sufficient information confirming our client’s position was thereafter advanced then it would be expected that the Crown would be persuaded to take a view on such prosecutions and not take them any further13.
Based on the available evidence, the Committee is satisfied that the Bill is competent in relation to the management and enforcement of offences detailed in sections 4 and 5.
The Committee recommends further consultation with Police Scotland on proposals to deliver specialist training regarding the enforcement of the offences created by this Bill, and to commit to put in place the necessary funds to develop and deliver that training. The Committee further requests that the financial memorandum (FM) be updated to reflect that commitment.
As part of its Stage 1 scrutiny, the Committee explored specific scenarios related to how influence is defined under the Bill. These related in particular to:
silent prayer,
religious iconography,
private premises and religious institutions, and
other forms of protest
Many of those opposed to the Bill were concerned about the potential impact of the Bill on silent prayer and peaceful praying. While the Bill does not mention prayer, the Policy Memorandum cites audible praying and prayer vigils as activities it expects to be prohibited by the criminal offences in the Bill. However, it is not clear that prayer which was entirely silent and unobtrusive would be prohibited under the Bill.
Margaret Akers from the Society for the Protection of Unborn Children (Scotland) described these concerns in her evidence to the Committee:
[...] the bill refers explicitly to silent vigils and to prayer. Criminalising prayer and thought is an alarming precedent to set. I encourage the committee to consider the ramifications of that and how thought and silent prayer might fit the description of behaviours [...]1
Isabel Vaughan-Spruce described her arrest in Birmingham as “criminalising thoughts”. In her testimony, described earlier in this report, she argued that, prior to her arrest, she had not been manifesting prayer in any way and was "arrested on the basis of what I might be praying about.1"
The right to freedom of religion in the European Convention on Human Rights (ECHR) – Article 9: freedom of thought, conscience and religion - is absolute, meaning it cannot be interfered with by the state. However, the types of behaviour which can be described as silent praying have the potential to cross the line into "manifestation" of religion. Dr Catriona McMillan from the Law Society of Scotland told the Committee that "the important thing to highlight from a legal perspective is that, although freedom of thought is an absolute right, freedom to manifest religion is not.1"
Dr McMillan went on to argue that determining the proportionality of any human rights impact of the legislation would be "quite dependent on the definition of silent prayer and what silent prayer activity includes—whether, for example, as was mentioned earlier, it is just standing there.1"
During the same session, Eilidh Dickson raised evidence submitted to the Committee by Police Scotland addressing how police officers would be able to judge whether silent prayer was actually happening and how the context around the situation would inform any judgements in relation to whether an offence had been committed. She noted that the "presence of religious artefacts, signage or things that the person was saying out loud, even if it was not related to prayer" could be indicators of intention or recklessness under the legislation. However, she went on to express the view that silent prayer in the absence of any other such context could not be included within the definition of an offence since "article 9 protects what happens inside one’s head" and would also "protect people from any interrogation about what they thought". Ms Dickson concluded:
If somebody was walking through a safe access zone with no religious or political affiliation visible on them, we cannot judge what is going on inside their head. You would have to look for some evidence of there being an intention for their prayer to be heard by others—perhaps not heard, but picked up by somebody else1.
Simon Brown from the SSBA suggested that, in most circumstances, it should be relatively easy to determine whether an offence was being committed since the behaviours being demonstrated would be relatively clear and would be unlikely to be restricted to unobtrusive silent prayer:
Although we are hearing scare stories about people being arrested for praying silently in the street, the protests that I have seen so far have involved placards, banners and posters, because the people are trying to make a point. If you can identify somebody as making a point of protesting within an exclusion zone, I do not foresee a difficulty in prosecuting that. Speaking from a defence point of view, I think that that would be hard to defend6.
At the same time, in relation to the issue of silent prayer, Elildh Dickson acknowledged that, from an operational perspective, "It would be a bit of a challenge [to manage], and there would have to be a proportionality adjustment in every case and also as a general rule.1"
Superintendent Corrigan explained that he would expect police officers to report to the Procurator Fiscal Service in any instance where their judgement was that an offence had been committed:
the police officer will probably need to describe the picture [...] the overall circumstances, the people’s location, their demeanour, how they are standing, whether there are any other signs or placards, and so on. It is about painting a picture of what the people are actually doing. I do not think that we could go down the road of asking people what they are thinking or what their thoughts are. That feels really uncomfortable. Even asking them why they are there at that point in time would probably, from a defence point of view, mean that we are beginning to question them and trying to complete the crime, which is also fraught with difficulties. It is getting into the realms of interviewing people at the location without offering them legal advice or cautioning them, and there are some difficulties with that6.
In written correspondence to the Committee following her evidence, the Minister for Public Health and Women’s Health provided further clarification of the Scottish Government’s position as to the extent to which silent prayer would be covered under the provisions of the Bill:
Prayer, silent or otherwise, is not of itself an offence under the Bill. Whether the behaviour or actions of persons who undertake this activity within a zone could be an offence would depend entirely on the facts and circumstances of each case, and the Scottish Government rightfully cannot interfere in how Police Scotland and the Crown Office and Procurator Fiscal Service discharge their duties9.
The Minister went on to state:
When considering the potential effects of silent prayer, it is important to note both the evidence Committee has heard about the impact of silent judgement, and the fact that the Supreme Court noted that silent protests can have a negative impact […] We have clear testimony from women that having to pass people standing in silent judgement is profoundly upsetting9.
Impact on those accessing services
Based on her own experience of protests, Alice Murray described why, in her view, it was important that the Bill focused on the intention behind behaviours rather than listing the behaviours themselves, arguing: "if we were to list exact behaviours in that way, it would be much harder to track what protesters are doing":
What the protesters say is silent prayer is what I experienced. I can speak only about my experience, but I know that it was all the same. It was all the more traumatising to walk into a clinic when people outside were suggesting that what I was doing was wrong and were questioning my decision. It was horrible and really emotionally draining. I think that it is just the same. We need to encompass a variety of actions in the bill. One person’s idea of engaging in silent prayer can look very different to the person on the other side who is alone and accessing healthcare11.
Dr Chris Provan also spoke about the effects of silent protest on women accessing healthcare:
We appreciate that silent protest can be intimidating. It is difficult to define, but any sort of presence in that area can be intimidating, and it potentially discourages women from coming forward6.
In her evidence, the Minister for Public Health and Women's Health reaffirmed the Scottish Government's position that the Bill "is not about specific actions, but the intent of those actions" before emphasising:
If it were the intention to impede, alarm or distress women attending abortion services, silent prayer would be included. We have not specifically laid out what the actual acts are. However, we have laid out what the intention of the acts is13.
The Minister went on to emphasise the importance of delegating responsibility for operational management of enforcement of the Bill to Police Scotland:
[...] we have to be cognisant that different people experience things in different ways. It is not for me to say how the police would look at any actions, although they would look at them in the wider context of what else was happening around about them [...] I think that, in evidence to you, the police made it clear that they would not be asking people whether they were praying, which I believe happened to one of the women who gave evidence to you. As I said earlier, there would have to be other things around the demonstrations, which the police would look for13.
Evidence from other jurisdictions
Some have questioned whether there should be a specific exclusion for silent prayer from offences under the Bill. When presenting her research to the Committee, Emily Ottley from the University of Winchester described how this issue had been handled during the passage of legislation in other jurisdictions:
Some of the parliamentary reports cite a lot of research on the impact of silent prayer on people. They talk about the fact that doing it very close to a clinic can be the problem, as opposed to doing it somewhere else. What comes across from the parliamentary reports is that it is more than just silent prayer. Silent prayer has been a big issue in the English and Welsh legislation in the sense that an amendment that was tabled at the final stage specifically excluded silent prayer from the legislation. It was not successful, but in the draft guidance that was published recently, which the UK Government has just closed its consultation on, silent prayer seemed to be excluded, so the Government was accused of watering down protection from the legislation11.
Addressing the question of how other comparable legislation on safe access zones have dealt with prohibiting behaviours, Emily Ottley responded that the legislation tended to be "generally quite broad in what is prohibited". However, she went on to acknowledge some of the difficulties encountered in other jurisdictions with defining the extent to which certain behaviours might or might not be prohibited:
Some of the parliamentary debates show some concern about how to characterise a particular behaviour. Some of the legal challenges regarding human rights compatibility have said that it would be possible to prohibit one behaviour but not another. That was the root of the challenge in Northern Ireland. The Supreme Court asked how police and clinic staff are to characterise whether what someone is doing is intended to influence or harass people, or whether that is okay. Although legislation that lists prohibited behaviour does so specifically, it lists pretty much everything that you can think of, which is an attempt to make the legislation easier to enforce. That makes sense, because it is difficult to know what is going on in an interaction between two people. We can see that in the Northern Ireland Supreme Court judgment11.
In relation to the distinction in approach between defining the impact of behaviour and defining the behaviour itself, Rachael Clarke, from BPAS, described her experience of the passage of similar legislation in England and Wales through section 9 of the Public Order Act 2023:
We had a conversation about that at length at Westminster. The original iteration of our amendment included a list of specific activities. After quite a prolonged discussion in the House of Lords, we concluded that there was probably more value in having a list of the impacts of behaviour rather than including specific behaviours. Part of the reason for that was that the Supreme Court had ruled on the protections in the Northern Ireland legislation. [...] We support that because there is an element of having that judicial support there already. One thing that we were ultimately trying to do was pin down every aspect of the harassment, because it is not always possible to keep up. In all honesty, it was very much like playing Whac-AMole; you would see something happen somewhere and think, “Oh, that needs to go in the bill,” and then you would see it somewhere else. We did not want to create a situation in which the legislation was always trying to catch up and the anti-abortion groups always had an edge on us because they just needed to act outside the copy of the legislation. For us, the impact is the right way to go, and I think that we can see that the approach is working in Northern Ireland. When the Home Office decides to introduce the approach in England, I am quite confident that it will work there, too11.
Some stakeholders opposed to the Bill argued that the offence set out in section 5 would infringe the Article 8 rights of people living in a safe access zone. The provision is seen by some as limiting what people can do in their own homes if they live in a safe access zone. Concerns were also raised about potential restrictions on churches and schools within a safe access zone arising from the implementation of the Bill. The Bishops’ Conference of Scotland said in its written response that section 5 "disturbingly creates criminal offences within private properties" and that they would be "extremely concerned that the Bill’s provisions would apply to other buildings, such as schools and churches1."
Further concerns were raised that churches could be prevented from displaying religious messaging. For example, Reverend Stephen Allison from the Free Church of Scotland questioned whether more general church messages, such as "a message to repent and be forgiven of your sins", would be considered an offence under the legislation2.
When asked how similar offences would currently be managed, Superintendent Corrigan set out his view that certain categories of conduct covered by the Bill could be captured under breach of the peace in Scots Law. He set out the following by way of example:
On the point about items being displayed on private property, I would just point out that, if there were a contentious march through a city centre, say, and someone displayed a flag of the opposing side on their private property, that would probably be an offence under breach of the peace. It does not come under specific legislation as such, but, given the behaviour that such a move could incite in those on the march, it could be a breach of the peace3.
Impact on those accessing services
Healthcare professional organisations emphasised the importance of achieving a balance of rights in this area and concluded that, in their view, the Bill was proportionate in this regard. Dr Chris Provan from the RCGP expressed support for the Bill on the basis that it would tackle instances where pictures could be displayed from a property located within a safe access zone that were intended to influence someone accessing abortion services:
It is a woman’s right to have healthcare in a non-judgemental way, without being deterred in any way, especially if they are in a vulnerable situation, for whatever reason. We would not want a scenario in which pictures are put up around a person’s house because it is within a zone. We support the bill, in that respect3.
Colin Poolman from the RCN Scotland expressed support for Dr Provan's position and illustrated how, in his view, exemptions from the section 5 offence could be misused:
I say that it is clear that there needs to be a balance between protecting people’s right to have a private conversation in their own home and the rights of patients and staff to access services without seeing distressing images. We think that the bill attends to that. If the bill were to make any other provisions about private dwellings, an unintended consequence could be people trying to use that as a loophole in the legislation. That would need to be considered. A campaigning organisation from either side of the debate could buy a private dwelling and turn it into some sort of headquarters, which would certainly defeat the purposes of the bill3.
Evidence from other jurisdictions
Rachael Clarke, from BPAS, described how the situation of private premises and other buildings located within safe access zones was addressed during the passage of section 9 of the Public Order Act 2023 at Westminster:
We were heavily involved in the passage of the English and Welsh law at Westminster last year and that question came up quite a lot with the bill team at the time. We were very clear that there needed to be some provision for private dwellings and other buildings within buffer zones. I think that I can speak for everyone in saying that absolutely none of us believes that someone having a private conversation in their own house should be covered. None of us believes that that should be stopped. However, people can use their private dwelling or another building that they own to have exactly the same effect as if those people were stood on a public highway. Our particular concern was around the posting in windows of very large posters with distressing images, or people standing in gardens handing out leaflets over a garden wall, with women essentially having to walk past them. Where we landed with the law in England is that it does not cover private conversations within a house or between houses, but it does cover anything that is aimed at women in the public space. For us, that balanced the right of people to do what they want in their home with not being allowed to inflict it on people in a buffer zone6.
In follow-up correspondence to the Committee, Emily Ottley responded to questions from Members about whether private properties would or would not be covered in comparable legislation in other jurisdictions. Ms Ottley concluded:
[...] much of the legislation does not address whether private dwellings would or would not be covered. However, private dwellings are explicitly (Canadian legislation except Quebec) or implicitly (Northern Ireland, Isle of Man, and South Australia) excluded in some jurisdictions. Further, it seems possible to commit an offence from a private dwelling, provided certain conditions are met, under both the English and Welsh legislation and the Irish Bill (as passed by the Dáil Éireann in November 2023)7.
In oral evidence, she also told the Committee: "some of the legislation that I have seen exempts things that happen in a church.6"
When questioned by the Committee, the Member in charge of the Bill was clear that "what happens inside private dwellings or churches, private conversations are not covered under the bill". Ms Mackay went on to explain that, to constitute an offence under the Bill, "things would have to happen from those premises that could be heard or seen within the zones". She further argued that there could be an undermining effect if private property was not covered by the Bill:
It is essential that such premises are covered by the legislation, for exactly the reasons that Colin Poolman gave early in the series of evidence sessions. The bill could be undermined by an anti-abortion organisation buying a property within the zone, using it as its headquarters, projecting images from it on to services, putting up large signs in the garden or handing information over the wall, as happens in some of the states in the US that do not exempt private dwellings. We have the balance right, but we will need to ensure that we communicate well with people who live in a zone and with religious organisations that have places of worship in a zone to ensure that they fully understand what we are doing with the bill9.
The Member further addressed questions as to the extent to which displaying religious iconography from private dwellings could be deemed to constitute an offence under the terms of the Bill. Ms Mackay responded that, as with other behaviours such as silent prayer, such a determination would be context dependent, an operational matter for Police Scotland and subject to prosecutor discretion9.
In follow up correspondence to the Committee, the Minister for Public Health and Women’s Health provided additional clarity regarding the potential handling of certain scenarios explored by the Committee as part of its Stage 1 scrutiny:
I note that religious hymns and signage outside of places of worship are commonplace in Scotland and, unless they were specifically targeting people who were accessing or providing abortion services in this way, I would not anticipate that they would be caught by the offences in section 5 of the Bill. This, in my view, would encompass general signs with messages, such as those suggested by Committee, setting out views on sin or repentance11.
A number of stakeholders raised concerns about the extent to which manifestations of prayer and worship by someone passing through a safe access zone could be considered to be exerting influence over someone accessing abortion services and therefore to be an offence under the terms of the Bill. Reverend Stephen Allison outlined his concerns in this area:
Prayer opens up a whole area of concern for us about the intention of the bill and whether prayer amounts to influencing or not. Religious symbols are connected to that, but even religious symbols that are not necessarily about a pro-life stance but are just religious symbols can be perceived as being connected to the issue before us. We all know that the vast majority of those who are engaged in this kind of behaviour come from a religious perspective, so any religious symbols could be seen as influencing someone1.
Those opposing the Bill raised concerns that a person may be inadvertently accused of committing an offence under the Bill given the public areas of land that would be covered by a safe access zone. Bishop John Keenan told the Committee:
If someone happened to have on a pro-life T-shirt that they bought at a conference a year ago and walked into the zone between two of those signs, they could be breaking the law. Inadvertently, they could find themselves becoming a criminal. Clarity is a big concern. We are not sure that a bill that talks about zones can adequately get over that difficulty1.
In support of this view, Margaret Akers outlined the following scenario and emphasised the importance, in her view, of ensuring clarity as to what would or would not constitute breaking the law:
In England, somebody having a pro-life bumper sticker on their car that was parked within a public spaces protection order area was raised as an issue of concern. It is not that the sticker was put on intentionally for the car to be parked in that spot. It was just something that they had on their car1.
Correspondence from the Law Society emphasises that, in such instances, determining the intention behind such behaviours would be critical in determining whether they constituted on offence liable to prosecution:
Intention or recklessness as to effect in this context will be a question of fact to be determined on the basis of evidence according to the usual processes for investigation and prosecution of alleged crimes, including the duties of the courts under section 6 of the Human Rights Act 1998 as highlighted by Eilidh Dickson of the SHRC during her evidence to the committee4.
In follow up correspondence to the Committee, the Minister for Public Health and Women’s Health reiterated that, in order for a behaviour to be determined as an offence:
the sign or message must meet the requirements set out in the offence provisions so would need to be clearly conveying a message designed to influence a person’s decision to access, facilitate or provide abortion services or impede access or cause harassment, alarm or distress5.
During its scrutiny, the Committee considered the potential impact of the Bill on other forms of protest that may occur at hospital sites. In this context, the policy memorandum states:
The Bill does not seek to prohibit protest on any other topic, whether or not related to the provision of healthcare. This is reflected in sections 4 and 5, which makes the connection to abortion services explicit1.
In follow-up correspondence to the Committee, Simon Brown from the SSBA explained the process that would need to be followed to determine whether such activity was or was not an offence under the terms of the Bill:
To take the hypothetical situation which was raised in the committee meeting of a legitimate protest taking place at a hospital [...] that would on paper contravene the legislation. It is however clearly not a protest designed to influence those seeking an abortion. The question then becomes how does the prosecutor square that intention with the contravention of the Act2.
The Minister for Public Health and Women's Health was clear in her evidence to the Committee that there was not an intention for other protests to be captured by this legislation or, in her view, any risk of this happening inadvertently:
The bill is very narrow, however, and deals specifically with abortion services and the safe access zone for abortion. From my perspective, and in all the work that we have done, we have been clear that there is no mission creep in the bill: it is specifically for those who protest about abortion services3.
Based on the evidence, the Committee agrees with the approach taken in the Bill of focusing on the intention behind behaviours as the means of determining whether an offence has been committed rather than providing a list of specific behaviours. The Committee is satisfied that the Bill provides sufficient clarity that the behaviour covered by the Bill is any which is intentionally trying to influence people who are accessing abortion services or being reckless as to whether that is the effect.
The Committee recognises that police officers in Scotland take an oath in which they pledge to ensure that, in their actions and in undertaking policing operations, they respect the human rights of all people; that they are used to determining context, behaviour and intent as part of their normal operational management of public order, and that there are suitable processes in place to allow these decisions to be contested, both in court and via appeal.
However, the Committee is also aware that there are areas of implementation that will be subject to ongoing review. The Committee recommends embedding a post-legislative review process into the legislation to ensure it remains human-rights compliant and to assess the extent to which protections in the Bill may need to be adjusted as a result. The Committee suggests this should include a record of any offences committed during the review period and an assessment of the extent to which each safe access zone has fulfilled its purpose.
The Committee has had extensive discussion on the issue of silent prayer, and remains unclear how the intent of those silently praying can be interpreted. It could be difficult for the police to reach a clear decision whether the law has been broken by people standing silently praying, in the absence of any other behaviour.
There is a difference of views within the Committee. Some Members consider that there should be an explicit exemption from the provisions in the Bill for silent prayer, in order to avoid any criminalisation of private thoughts. However, other Members feel that such an exemption would fundamentally undermine the purpose of the Bill, and that people silently praying can still be intimidating to those seeking to access abortion services. This is an issue we expect we will need to return to at Stage 2 if the Bill proceeds to that Stage.
Section 6 of the Bill creates four specifically defined exceptions to the offences in the Bill. The offences under sections 4 and 5 do not apply where the behaviour:
comes from another person who has the permission of the person accessing abortion services to accompany them.
comes from a person who is providing or facilitating the provision of abortion services at the premises
comes from a person who is providing other healthcare services at the premises.
relates to peaceful picketing flowing from a trade dispute recognised under section 220 (peaceful picketing) of the Trade Union and Labour Relations (Consolidation) Act 1992.
The Committee heard concerns from certain stakeholders in relation to the latter two exceptions outlined above.
Dr Sarah Wallage of NHS Grampian raised concerns with the Committee about the exception provided in the Bill for a person "providing other health care at protected premises". She was specifically concerned that non-abortion related healthcare staff staging anti-abortion protests might be protected1. However, the Committee also noted that, under section 6 of the Bill, the exemption only applies where the person is acting in the course of providing other healthcare at protected premises.
Reverend Stephen Allison raised concerns that hospital chaplains would not be covered by that same exception:
There are exceptions in the legislation for healthcare workers in the hospital context [...] However, what would happen if someone asked whether they could speak to a chaplain? Under the legislation, would the chaplain be allowed to have those discussions in the hospital? A person might ask to speak to a Roman Catholic chaplain, or another type of chaplain, who would have their own views. Are such people healthcare workers under the bill? Are they covered by the exceptions? I am not sure2.
The Minister for Public Health and Women's Health was clear as to why chaplains were not explicitly included in the exceptions set out under section 6 of the Bill:
There is not a specific exemption for the chaplaincy or spiritual support provided within hospitals. It would be the choice of the person accessing the services whether to speak to those staff, so that is not an exemption3.
The Member in charge of the Bill was asked to address the specific scenario where a Catholic priest visits a parishioner at a hospital and is seen by someone accessing abortion services who feels alarmed or intimidated as a result. She responded:
To my mind, that would not be covered under the intent aspect of the provisions, and I do not think that it would come under the reckless aspect, either. Recklessly causing an offence is covered in quite a lot of law across the Scottish statute book. I do not believe that a priest simply attending to visit parishioners would be covered3.
While rejecting any suggestion that the exceptions set out in the Bill should be widened, Gillian Mackay went on to acknowledge that such a scenario illustrated the potential need for additional guidance to support the implementation of the Bill:
That does not necessarily mean that people will not call the police in that situation, although I hope that they will not. Again, we might need to do a piece of awareness raising on that as part of the work on the bill. Even if we wrote such an exemption into the bill, that would not prevent someone from potentially misunderstanding and calling the police in the first place. That might open up a loophole that is not there currently, because those matters are not covered by the bill3.
In relation to the final exception provided in section 6 of the Bill, the RCN6 and Unison7 expressed concern that trade union activities were at risk of contravening section 4(1)(a) of the Bill, in that they could be seen as influencing the decision of staff members to provide or facilitate the provision of abortion services. They called for the exemption to be widened to cover activities carried out in advance of industrial action. They suggested this could include, for example, the provision of information about the dispute or activity to support the balloting of members. In his evidence to the Committee, Colin Poolman from the RCN further expanded on how he would like to see the legislation amended:
We would want to have the ability to have such discussions with staff. If the definition is as narrow as it is at the moment, we believe that there could be some unintended consequences. Some employers could turn round and say that employees are covered under this legislation. Although employees would be taking part in trade union activity and not protesting about the provision of services or whatever, employers could misuse that potential in the act1.
The Minister for Public Health and Women's Health responded directly to these concerns, stating:
We highlighted the picketing provisions in the Trade Union and Labour Relations (Consolidation) Act 1992, and we have said that they are not overridden by the bill. The work around picketing, such as allowing it to take place and informing people that there could be a picket, would all be okay3.
The wording of section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992 sets out that:
It is lawful for a person in contemplation or furtherance of a trade dispute to attend—
(a) at or near his own place of work, or
(b) if he is an official of a trade union, at or near the place of work of a member of the union whom he is accompanying and whom he represents,
for the purpose only of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working.
The Committee acknowledges trade union concerns that the current exception for trade union picketing is narrowly defined and could result in other activities associated with industrial disputes that would seek to influence staff delivering abortion services not to provide those services, being captured as an offence. The Committee therefore calls on the Member in charge of the Bill and the Scottish Government to consider how and to what extent this exception might be expanded to include other types of trade union activity without undermining the underlying purpose of the Bill.
The penalty for committing an offence under the Bill is a fine, which can be imposed under either of the two types of court proceedings for dealing with criminal charges in Scotland. The maximum fine where someone has been charged with an offence in the Bill under summary procedure (which covers less serious offences) is the statutory maximum fine, which is set in legislation. The current statutory maximum fine in this context is £10,000. Where someone is charged with a Bill offence under solemn procedure (more serious offences), there is no limit to the fine they can receive.
The SPICe Bill briefing highlights that the maximum penalties provided for by the Bill are significant:
the penalties are higher than those in place for similar initiatives. The fine for breaching the restrictions in place in Ealing Council's Public Spaces Protection Order is a maximum of £1,000. For the offences in the Abortion Services (Safe Access Zones) (Northern Ireland) Act 2023, it is £500 in most cases (and £2,500 in others)1.
Some respondents to the call for views who opposed the Bill thought that the fines could be disproportionately high when compared to penalties for other serious criminal activity. Some respondents to the call for views who supported the Bill were concerned that fines would be paid by well-funded international anti-abortion campaign groups and that this could reduce their deterrent effect. Simon Brown from the SSBA also suggested that, with the aim of publicising their position, people might deliberately refuse to pay fines and might actively choose to risk prison instead2.
Eilidh Dickson from the SHRC noted that the provisions in the Bill relating to fines are the standard default set in existing legislation and were not unique to this Bill. She concluded:
It would be useful if somebody from the Government set out what they expected the fines to be, but we would expect them to be considerably lower than £10,000 [...] but someone should set out what they expect the fine to be in these sorts of circumstances3.
Notwithstanding the concerns outlined above, many stakeholders who supported the Bill were generally supportive of fines being used as penalties under the terms of the Bill rather than having recourse to prison sentences. However, some of those who supported the Bill called for stronger penalties, including prison sentences and orders which would ban people from engaging in certain activities.
During his evidence, Rob Gowans from the ALLIANCE argued, on the understanding that the courts would take account of the specific circumstances of a case before setting any individual fine, that the penalties set out in the Bill were appropriate:
It will be for the courts to decide the level of sanction or penalty on a case-by-case basis, and that is captured in the bill. For instance, the courts will determine whether there have been repeat offences that have caused physical or mental harm and whether someone’s intention was to get arrested and have their fine paid by someone else or to not pay the fine in an attempt to get imprisoned. We are happy with that part of the bill3.
Rachael Clarke described the approach that was taken on penalties with respect to the passage of section 9 of the Public Order Act 2023 at Westminster, concluding that the approach taken by the current Bill was very much in line with this:
Again, that goes back to the Supreme Court’s conclusion on Northern Ireland, which was that the use of fines was adequate in those situations. We started out with optional prison sentences, but we reduced those. In some ways, whether I think that is the appropriate punishment is a little irrelevant, because it would put Scotland out on a limb to include prison sentences in a bill that is not currently in place in Northern Ireland or England and Wales, or—I believe that I am right in saying—in the proposed legislation in Ireland5.
Emily Ottley was asked by Members whether any comparable legislation in other jurisdictions had made provision for offenders to be issued with warnings. She responded:
I think that some legislation talks about giving warnings first, so going down the arrest route is not always the first port of call. Some legislation requires either a warning or removal from the zone in the first instance, and then there might be an arrest or investigation. There are definitely examples of that happening. In reports on the subject, some people say, "Well, that’s evidence of it not working," and some say, "No—actually, that’s evidence of it working, because those people are being arrested and prosecuted."5
Witnesses were asked to what extent they felt that the penalties set out in the Bill would have a suitable deterrent effect. Simon Brown from the SSBA indicated that he believed "as it is written, the bill should go a long way towards providing the relevant protections". However, he also suggested that, in his view, the penalties could be further expanded:
I think that you should be looking at something similar to the current provisions in relation to domestic abuse, whereby non-harassment orders can be granted. Once a person has been convicted, I think that you would like the prosecutor to ask the court to impose an order on that person not to go within an exclusion zone at any hospital for a period of time. That would provide the police with a reason to arrest a person simply for being there without doing anything, and that should cut down the number of protesters over time2.
Based on the evidence it has received, the Committee is satisfied that the penalties in the Bill are appropriate and proportionate to achieving the aims of the Bill.
However, the Committee highlights evidence it has received that penalties could be expanded to include the issuing of warnings or physical removal from a safe access zone as a further means of policing first offences as well as the issuing of an exclusion order prohibiting those found to have committed repeat offences from entering a safe access zone for a defined period of time. It calls on the Member in charge of the Bill and the Scottish Government to consider whether amendments might be required to the Bill to enable the use of such alternative approaches or to what extent they might be covered in operational guidance supporting the Bill's implementation.
The Committee also recommends that the legislation is subject to ongoing review to ensure penalties remain appropriate to achieving the deterrent aims of the Bill. It calls on the Scottish Government to keep the Parliament informed of any significant developments in case law that could have implications in this area.
Section 11 of the Bill provides for Scottish Ministers to publish guidance relating to protected premises and the establishment, extension, reduction or cessation of safe access zones.
Sections 12-16 of the Bill contain general provisions including those relating to ancillary powers, interpretation, crown application, commencement and the Bill's short title.
The Committee has no specific comment to make on these sections of the Bill.
The Committee has taken evidence over the course of its scrutiny which has illustrated the importance of ensuring that women can access healthcare services without harassment and undue influence. The Committee has also heard concerns about the potential impact of the Bill upon the human rights of those who engage in anti-abortion activity. Notwithstanding the Committee's position in relation to silent prayer and while acknowledging that the Bill has a differential impact on competing human rights, the Committee has concluded that its provisions are proportionate to achieving its stated aims.
Throughout its scrutiny, the Committee has carefully considered the views of a broad cross-section of stakeholders, both for and against the Bill. In the process of reaching a view on the general principles, it has explored a range of scenarios that may arise if the legislation were to be enacted. It has concluded from this exercise that it will be necessary and important for individual cases to be assessed according to their particular circumstances and that operational management of enforcement of the legislation will have a critical role to play in ensuring its appropriate implementation.
The Committee is firmly of the view that, to ensure that it remains suitably proportionate, balanced and effective in the light of changing circumstances, the legislation must be subject to a robust process of post-legislative review. It therefore calls on the Member in charge of the Bill and the Scottish Government to make provision for this, including appropriate opportunities for ongoing parliamentary scrutiny, by way of Stage 2 amendments to the Bill.
The Health, Social Care and Sport Committee draws its conclusions and recommendations on the Bill to the attention of the Parliament and recommends that the general principles of the Bill be agreed to.
Committee meetings
The Committee took oral evidence on the Bill at the following committee meetings-
6th Committee meeting, 2024 (Session 6) Tuesday 27 February 2024
7th Committee meeting, 2024 (Session 6) Tuesday 5 March 2024
8th Committee meeting, 2024 (Session 6) Tuesday 12 March 2024
9th Committee meeting, 2024 (Session 6) Tuesday 19 March 2024
Informal engagement
The Committee undertook informal engagement with those who may be directly affected by the Bill, including individuals who support, and individuals who oppose, the introduction of safe access zones.
26 February 2024 - Impact on those accessing abortion services
5 March 2024 - Impact on those who are against the introduction of safe access zones
Calls for evidence
The Committee took written evidence on the Bill-
The Committee issued two calls for evidence which were open for submissions between 27 October 2023 and 20 December 2023.
Read the summary of evidence from the detailed call for views
Read the summary of evidence from the short survey responses
Additional written evidence, where publishable, is available on the Health, Social Care and Sport Committee webpage.
Research
The Committee commissioned research on comparable legislation and its implementation worldwide.